(PC) Lewis v. Quinto

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA KEVIN LEWIS, JR., Case No. 1:22-cv-00628-NODJ-CDB (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY 13 v. DEFENDANT HERNANDEZ SHOULD NOT BE DISMISSED FROM THIS ALAN QUINTO, et al., ACTION FOR PLAINTIFF’S FAILURE TO PROVIDE SUFFICIENT 15 Defendant. INFORMATION TO EFFECTUATE SERVICE 30-DAY DEADLINE 19 Plaintiff Kevin Lewis, Jr., is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed under 42 U.S.C. § 1983. This action proceeds on an Eighth Amendment claim for use of excessive force against Defendants Alan Quinto, Bobby Gilbert, Shannon Brown, and John Hernandez, Correctional Officers (“COs”) at North Kern State Prison; and a claim for failure to protect against COs Brown and Hernandez. (Doc. 20.)

24 On October 27, 2023, the Court issued its Order Finding Service Appropriate. (Doc. 21.)

25 Specifically, service was to be effected on Defendants Quinto, Gilbert, Brown, and Hernandez.

26 (Id. at 2.)

27 On December 12, 2023, and again on January 8, 2024, the California Department of Defendant Hernandez, indicating it was unable to identify a “John Hernandez.” (Docs. 28, 32.)

2 CDCR was unable to provide a last known address or any other information concerning this individual.

4 I. DISCUSSION 5 Plaintiff identified this defendant in the operative complaint as “John Hernandez … correctional officer” at North Kern State Prison. (See Doc. 1 at 2.) Thus, in the Order Finding Service Appropriate, service was to be effected on “John Hernandez, allegedly employed as a correctional officer at North Kern State Prison [“NKSP”] on February 24, 2021.” (Doc. 21 at 2, emphasis in original.)

10 The Court’s October 27, 2023, order provides that where the CDCR or the Attorney General’s Office is “unable to effectuate service,” service will be referred to the United States Marshal. (Id. at 2.) Accordingly, on the date CDCR first filed its notice of intent to not waive service as to Defendant Hernandez (December 12, 2023), the Clerk of Court forwarded service documents to the United States Marshal.

15 On January 12, 2024, the Clerk of Court filed a summons returned unexecuted as to Defendant Hernandez. (Doc. 35.) In that filing, a deputy United States Marshal certified that as of December 28, 2023, he was unable to locate Defendant Hernandez for service. Id. Specifically, the deputy United States Marshal indicated: “Per NKSP LitCor, cannot identify a staff member by the name of John Hernandez.” Id. 20 Because neither CDCR nor the United States Marsha is able to identify Defendant Hernandez, Plaintiff will be directed to provide additional information.

22 Federal Rule of Civil Procedure 4(m) provides as follows: 23 If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without 24 prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the 25 time for service for an appropriate period.

26 See Fed. R. Civ. P. 4(m).

27 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the 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).

5 “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 7 F.3d 1415, 1422 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 8 (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.

11 Here, the United States Marshal cannot attempt to serve Defendant Hernandez without information concerning his identity and location. Plaintiff identified Defendant Hernandez as a correctional officer at NKSP during the incidents about which he complains. However, the CDCR has since advised that it was unable to identify Hernandez. Therefore, Plaintiff has failed to provide the Marshal with accurate and sufficient information to effect service of the summons and Plaintiff’s complaint on Defendant Hernandez. Walker, 14 F.3d at 1421-22. If Plaintiff is unable to provide the United States Marshal with the necessary information to identify and locate this individual, Defendant Hernandez shall be dismissed from this action, without prejudice, pursuant to Rule 4 of the Federal Rules of Civil Procedure. It is Plaintiff’s obligation to provide the United States Marshal with accurate and sufficient information to effect service of process. Id. 21 Pursuant to Rule 4(m), the Court will provide Plaintiff with the opportunity to show cause why Defendant Hernandez should not be dismissed from the action at this time. Plaintiff may respond to this order by providing additional information that will assist the United States Marshal in identifying and locating Defendant Hernandez for service of process.

25 II. CONCLUSION AND ORDER 26 Based on the foregoing, IT IS HEREBY ORDERED that: 27 1. Within thirty (30) days from the date of service of this order, Plaintiff shall show cause 1 by providing additional information concerning Defendant Hernandez’s identity and 2 current location; and 3 2. The failure to respond to this order or the failure to show cause will result in the 4 dismissal of any unidentified defendant from this action, due to Plaintiffs failure to 5 serve process pursuant to Federal Rule of Civil Procedure 4(m).

6 | IT IS SOORDERED.

Dated: _ January 16, 2024 | hr 8 UNITED STATES MAGISTRATE JUDGE