Bradley James Much v. Michael Langston

Filing 60

MINUTE ORDER TO SHOW CAUSE WHY THE MAGISTRATE JUDGE SHOULD NOT RECOMMEND THAT PLAINTIFFS CLAIMS AGAINST DR. AZAD KURKJIAN AND DR. HIRUY GESSESSE BE DISMISSED PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 4(m) FOR FAILURE TO TIMELY SERVE THE SUMMONS AND COMPLAINT by Magistrate Judge Suzanne H. Segal. Plaintiff is ORDERED TO SHOW CAUSE within fourteen (14) days of the date of this Order why the Magistrate Judge should not recommend that his claims against Dr. Kurkjian and Dr. Gessesse be dismissed for failure to serve these Defendants within the period prescribed by Rule 4(m). (Attachments: # 1 Notice of Dismissal Form (Blank)) (mz)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 16-0863 VAP (SS)

Title:

Bradley James Much v. Michael Langston, et al.

DOCKET ENTRY:

Date: September 8, 2017
Page 1 of 5

ORDER TO SHOW CAUSE WHY THE MAGISTRATE
JUDGE
SHOULD
NOT
RECOMMEND
THAT
PLAINTIFF’S CLAIMS AGAINST DR. AZAD KURKJIAN
AND DR. HIRUY GESSESSE BE DISMISSED PURSUANT
TO FEDERAL RULE OF CIVIL PROCEDURE 4(m) FOR
FAILURE TO TIMELY SERVE THE SUMMONS AND
COMPLAINT

PRESENT:
HONORABLE SUZANNE H. SEGAL, UNITED STATES MAGISTRATE JUDGE
_Marlene Ramirez_

_______None_______

__None__

Deputy Clerk

Court Reporter/Recorder

Tape No.

ATTORNEYS PRESENT FOR PLAINTIFF:

ATTORNEYS PRESENT FOR DEFENDANTS:

None Present

None Present

PROCEEDINGS: (IN CHAMBERS)
Plaintiff, a California resident proceeding pro se, filed the instant civil rights action
pursuant to 42 U.S.C. § 1983 on February 8, 2016. The Court granted Plaintiff’s request to
proceed in forma pauperis on February 12, 2016. (Dkt. No. 5). In the Third Amended
Complaint, filed on December 14, 2016, Plaintiff alleged that three Signal Hill Police
Department Officers and two physicians, Dr. Hiruy H. Gessesse and Dr. Azad “Kurjian,”
violated his Fourth Amendment right to be free from unlawful arrest and confinement by
detaining him for involuntary psychiatric care. On April 10, 2017, the Court directed the
United States Marshal to serve the Third Amended Complaint on the five named

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 16-0863 VAP (SS)

Title:

Date: September 8, 2017
Page 2 of 5

Bradley James Much v. Michael Langston, et al.

Defendants, including Dr. Gessesse and Dr. Kurjian, at the addresses provided by Plaintiff.1
(Dkt. No. 40).
On June 21, 2017, the Marshal’s Service filed an unexecuted Process Receipt and
Return reflecting that it was unable to serve Dr. Kurjian. (Dkt. No. 49). According to the
Marshal’s Service, when it attempted to serve Dr. Kurjian at the address provided -- which
Plaintiff identified as Dr. Kurjian’s office at 2810 E. Del Mar, Suite 7, Pasadena, California
91107 -- it was told by the receptionist that “there is no Dr. Azad Kurjian in Suite 7 and that
she [has] never received any mail for anyone name[d] Dr. Azad Kurjian while working as a
receptionist [in that office] for over two years.” (Id.).
On July 28, 2017, the Marshal’s Service filed another unexecuted Process Receipt
and Return, this time reflecting that it was unable to serve Dr. Gessesse. (Dkt. No. 55).
According to the Marshal’s Service, when it attempted to serve Dr. Gessesse at the address
provided -- which Plaintiff identified as St. Francis Medical Center, 3630 East Imperial
Highway, No. 104, Lynwood, California 90262 -- it was told that Dr. Gessesse had no office
at the hospital. (Id. at 1). On the second attempt at service, it was “sent to [the] Medical
Staff Office [at] the main Hospital,” where it was told that Dr. Gessesse “only sees [patients]
periodically at St. Francis Medical Center” and that he “was not there all the time.” Id. On
the Marshal Service’s third attempt at service, on June 30, 2017 at 3:12 p.m., it was told that
“Hiruy Gessesse has not lived at residence [sic] in 5 years.” (Id.).2

1

Plaintiff filed the operative Fourth Amended Complaint on June 8, 2017 to correct five
non-substantive “errors” in the Third Amended Complaint. (See Dkt. No. 43 at 2). These
amendments included the spelling of Dr. Kurkjian’s name, which Plaintiff revised from
“Dr. Kurjian” in the Third Amended Complaint to “Dr. Kurkjian” in the Fourth Amended
Complaint. (Id.). The Court will refer interchangeably to Dr. Kurkjian by the spellings in
the Third and Fourth Amended Complaints according to context.
2

The three police officer Defendants have appeared and have filed a pending Motion to
Dismiss. (Dkt. No. 54).

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 16-0863 VAP (SS)

Title:

Date: September 8, 2017
Page 3 of 5

Bradley James Much v. Michael Langston, et al.

Federal Rule of Civil Procedure 4(m) sets a deadline by which a summons and
complaint must be served after an action is filed. The purpose of Rule 4(m) is to encourage
“the prompt movement of civil actions in federal court.” Matlock v. Hawkes, 874 F. Supp.
219, 221 (N.D. Ill. 1995); see also Matasareanu v. Williams, 183 F.R.D. 242, 247 (C.D. Cal.
1998) (“‘The purpose of Rule 4(m) is to assure that defendant will be promptly notified of
the lawsuit, thereby preventing possible prejudice resulting from delay: e.g., loss of
evidence, dimming of witnesses’ memories, financial commitments based on not being
sued, etc.’”) (quoting Schwarzer, Tashima, & Wagstaffe, California Practice Guide: Federal
Civil Procedure Trial, § 5:261 (1997 rev.)). The rule provides in relevant part:
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 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 time for service for an appropriate period.
Fed. R. Civ. P. 4(m).
“Rule 4(m) . . . requires a district court to grant an extension of time when the
plaintiff shows good cause for the delay. Additionally, the rule permits the district court to
grant an extension even in the absence of good cause.” Efaw v. Williams, 473 F.3d 1038,
1040 (9th Cir. 2007) (emphasis in original; internal citations omitted). While “[d]istrict
courts have broad discretion to extend time for service under Rule 4(m),” that discretion is
not limitless. Id. at 1041. In determining whether to exercise discretion to extend time
under Rule 4(m), a court may consider factors such as a “statute of limitations bar, prejudice
to the defendant, actual notice of a lawsuit, and eventual service.” Id. (internal quotation
marks and citation omitted).
In cases where a court is required to screen a complaint before it may be served, it is
generally accepted that the service deadline prescribed by Rule 4(m) does not begin to run
until the date the court authorizes service of the complaint. See Robinson v. Clipse, 602
F.3d 605, 609 (4th Cir. 2010) (Rule 4(m) limitation period is triggered by “the court’s

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 16-0863 VAP (SS)

Title:

Date: September 8, 2017
Page 4 of 5

Bradley James Much v. Michael Langston, et al.

authorization of service of process” of a complaint by a plaintiff proceeding in forma
pauperis); Urrutia v. Harrisburg Cnty. Police Dep’t, 91 F.3d 451, 459 (3d Cir. 1996) (tolling
Rule 4(m)’s service period for all in forma pauperis plaintiffs until court authorizes service
of amended complaint); Goni v. Halloran, 2008 WL 5111262, at *1 (S.D. Fla. Dec. 3, 2008)
(“A suit filed by an individual who is proceeding in forma pauperis or a suit brought [by] a
prisoner seeking redress against a government actor is not commenced upon filing of the
complaint, but rather only after the district court satisfies itself that the plaintiff is indigent
and that the claim is not frivolous.”).
Because the Court ordered service of the Third Amended Complaint on April 10,
2017, Plaintiff had until July 10, 2017 -- ninety days after the Order issued -- to effect
service.3 While the Marshal’s Service was charged with serving Plaintiff’s complaint, it
necessarily relies on the information given by Plaintiff. It is ultimately Plaintiff’s
responsibility to provide the Marshal’s Service with accurate addresses for the Defendants
to be served. See Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (a plaintiff who is
entitled to service by United States Marshal must provide the Marshal’s Service with
sufficient information to serve the defendant), abrogated on other grounds by Sandin v.
Conner, 515 U.S. 472, 483–84 (1995); Abercrombie v. Kaut, 609 F. App’x 470, 471 (9th
Cir. 2015) (“The district court did not abuse its discretion in dismissing [plaintiff’s] action
without prejudice because, despite being given opportunities to locate defendant and being
warned that dismissal would result if he failed to provide the United States Marshal with a
valid current address, [plaintiff] failed to serve the summons and the complaint on
[defendant] in a timely manner.”); see also Yates v. LeBlanc, 2012 WL 6694066, at *1
(M.D. La. Dec. 21, 2012) (“[Even where a] plaintiff is entitled to rely upon service by the
United States Marshal, ‘a plaintiff may not remain silent and do nothing to effectuate such
service. At a minimum, a plaintiff should attempt to remedy any apparent service defects
of which a plaintiff has knowledge.’”) (quoting Rochon v. Dawson, 828 F.2d 1107 (5th Cir.
1987)).

3

Ninety days after April 10, 2017 is July 9, 2017. However, because July 9 was a Sunday,
the deadline is continued to the following court day. Fed. R. Civ. P. 6(a)(1)(C).

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 16-0863 VAP (SS)

Title:

Date: September 8, 2017
Page 5 of 5

Bradley James Much v. Michael Langston, et al.

Plaintiff has known since June 21, 2017 -- more than two and a half months ago -that the Marshal’s Service was unable to serve Dr. Kurkjian. (Dkt. No 49). Plaintiff has
known since July 28, 2017 -- six weeks ago -- that the Marshal’s Service was unable to
serve Dr. Gessesse. (Dkt. No. 55). However, the docket does not show that Plaintiff has
made any attempt to obtain correct current addresses for these Defendants and to provide
that information to the Marshal’s Service.
Accordingly, Plaintiff is ORDERED TO SHOW CAUSE within fourteen (14)
days of the date of this Order why the Magistrate Judge should not recommend that his
claims against Dr. Kurkjian and Dr. Gessesse be dismissed for failure to serve these
Defendants within the period prescribed by Rule 4(m). Plaintiff may satisfy this Order by
filing proofs of service reflecting that Defendants have been properly served or a declaration
explaining under oath why Plaintiff has been unable to provide the United States Marshal’s
Service with accurate addresses for these Defendants. Any declaration must describe
Plaintiff’s efforts, through formal discovery or other means, to obtain accurate
addresses for the unserved Defendants.
Plaintiff is explicitly cautioned that the failure to respond to this Order by the
Court’s deadline will result in a recommendation that the claims against the two
unserved Defendants identified above be dismissed without prejudice pursuant to Rule
4(m). If Plaintiff no longer wishes to pursue his claims against these Defendants,
Plaintiff may request a voluntary dismissal of these Defendants or this action in its
entirety pursuant to Federal Rule of Civil Procedure 41(a). A Notice of Dismissal form
is attached for Plaintiff’s convenience.
The Clerk of the Court is directed to serve a copy of this Order on Plaintiff at his
address of record and upon counsel for the Defendants who have appeared.
IT IS SO ORDERED.
MINUTES FORM
CIVIL-GEN

Initials of Deputy Clerk mr