(PC) Puckett v. Kelso

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA DURRELL ANTHONY PUCKETT, Case No. 1:23-cv-00054-HBK (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY DEFENDANT GUTIERREZ SHOULD NOT 13 v. BE DISMISSED FROM THIS ACTION FOR FAILURE TO PROVIDE SUFFICIENT J. BARRIOS, FNU HERNANDEZ, FNU INFORMATION TO EFFECTUATE WHITE, and FNU GUTIERREZ, SERVICE Defendants. (Doc. No. 18) THIRTY (30) DAY DEADLINE 18 Plaintiff Durrell Anthony Puckett is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds against Defendants J. Barrios, FNU Hernandez, FNU White, and FNU Gutierrez for violation of Plaintiff’s Eighth Amendment right to be free from cruel and unusual punishment.

22 On February 17, 2023, the Court issued an order directing service on Defendants under the Court’s E-Service pilot program for civil rights cases for the Eastern District of California.

24 (Doc. No. 18). On May 4, 2023, the Court received information that Defendants White, Barrios, and Hernandez were successfully identified as employees of California State Prison – Corcoran, but Defendant Gutierrez could not be identified. (Doc. Nos. 23, 24). On May 5, 2023, the United States Marshal returned the summons on Defendant Gutierrez as unexecuted. (Doc. No. 25). The U.S. Marshal was unable to identify Defendant Gutierrez for service of process. (Id.). If Plaintiff is unable to provide the Marshal with the necessary information to identify and locate this defendant, Defendant Gutierrez shall be dismissed from this action, without prejudice.

3 Specifically, Federal Rule of Civil Procedure 4(m) provides as follows: If a defendant is not served within 120 days after the complaint is filed, the 5 court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made 6 within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

8 Fed. R. Civ. P. 4(m).

9 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the summons and complaint, and . . . should not be penalized by having his or her action dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to perform the duties required of each of them . . . .” Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). “So long as the prisoner has furnished the information necessary to identify the defendant, the marshal’s failure to effect service is ‘automatically good cause . . . .’” Walker v. Sumner, 14 F.3d 17 1415, 1422 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472, 115 (1995). However, where a pro se plaintiff fails to provide the Marshal with accurate and sufficient information to effect service of the summons and complaint, the Court’s sua sponte dismissal of the unserved defendant is appropriate. Walker, 14 F.3d at 1421–22.

21 Pursuant to Rule 4(m), the Court will provide Plaintiff with the opportunity to show cause why Defendant Gutierrez should not be dismissed from the action at this time. Plaintiff may respond to this order by providing additional information that will assist the Marshal in identifying Defendant Gutierrez for service of process. For example, Plaintiff may provide an approximate date for the incident at issue, a building number or facility where the incident took place, or other identifying physical features for Defendant Gutierrez.

27 //// 1 Accordingly, it is ORDERED: 2 1. Within thirty (30) days from the date of service of this order, Plaintiff shall show cause 3 why Defendant Gutierrez should not be dismissed from this action; and 4 2. The failure to respond to this order or the failure to show cause will result in the 5 dismissal of any unidentified defendant from this action, due to Plaintiffs failure to 6 serve process pursuant to Federal Rule of Civil Procedure 4(m).

Dated: _ June 8, 2023 Mihaw. Th fareh Hack 9 HELENA M. BARCH-KUCHTA 0 UNITED STATES MAGISTRATE JUDGE