Cohea v. Adams et al

Filing 74

ORDER signed by District Judge Lawrence J. O'Neill on 8/3/2011 dismissing Defendant, N. Hicinbothem for failure to effect service of process. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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DANNY JAMES COHEA,

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CASE NO. 1:08-cv-01186-LJO-SMS PC

Plaintiff,

ORDER DISMISSING DEFENDANT N.
HICINBOTHEM FOR FAILURE TO EFFECT
SERVICE OF PROCESS

v.
D. ADAMS, et al.,

(ECF No. 66, 72)
Defendants.
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Plaintiff Danny James Cohea, a state prisoner proceeding pro se and in forma pauperis, filed

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this civil rights action pursuant to 42 U.S.C. § 1983 on August 13, 2008. On November 30, 2009,

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the United States Marshal returned the summons and USM-285 form for Defendant N. Hicinbothem

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unexecuted. (ECF No. 34.) On August 25, 2010, the United States Marshal returned the second

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summons and USM-285 form for Defendant N. Hicinbothem unexecuted. (ECF No. 52.) The Court

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issued an order to show cause why Defendant N. Hicinbothem should not be dismissed from the

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action for failure to serve on January 25, 2011. (ECF No. 56.) Plaintiff filed a response on March

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1, 2011, and the Marshal was ordered to re-serve Defendant N. Hicinbothem on April 8, 2011. (ECF

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Nos. 58, 60.) On May 31, 2011, Defendants filed a request for an extension of time, which also

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stated that during 2008 there were three employees in the appeals unit at Corcoran by the name of

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Hicinbothem. (ECF No. 62.) None of them have a first initial of N. An order issued on June 2,

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2011, requiring Plaintiff to provide additional information to identify the person to be served. (ECF

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No. 66.) On July 6, 2011, Plaintiff filed a response. (ECF No. 72.)

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Plaintiff responds with accusations of misconduct by defense counsel and the Court. Plaintiff
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fails to provide further information identifying the person to be served, stating that both

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Hicinbothems should be served.1 Plaintiff’s complaint was found to state a cognizable claim against

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a single individual named N. Hicinbothem. Plaintiff has been advised that the information he

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provided is insufficient to identify the defendant to be served and he has been given two

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opportunities to provide additional information to identify the defendant. (ECF No. 56, 66.)

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Plaintiff has failed to comply with the Court’s order and provide information sufficient to identify

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the person to be served.

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

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Court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “[A]n incarcerated pro

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se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the

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summons and complaint and . . . should not be penalized by having his action dismissed for failure

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to effect service where the U.S. Marshal or the court clerk has failed to perform his duties . . . .”

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Walker, 14 F.3d at (quoting Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990)). As long as the

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plaintiff has provided “information necessary to identify the defendant, the marshal’s failure to effect

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service is ‘automatically good cause . . . .’” Walker, 14 F.3d at 1422 (quoting Sellers v. United

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States, 902 F.2d 598, 603 (7th Cir. 1990). However, where a pro se plaintiff fails to provide the

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Marshal with accurate and sufficient information to effect service of the summons and complaint,

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the court’s dismissal of the unserved defendants is appropriate. The Court fails to find good cause

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to order the United States Marshal to make a fourth attempt at service.

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Accordingly, Defendant Hicinbothem is HEREBY DISMISSED from this action, without

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prejudice, for Plaintiff’s failure to effect service pursuant to Federal Rule of Civil Procedure 4(m).

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IT IS SO ORDERED.

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Dated:
b9ed48

August 3, 2011

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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Although Plaintiff is now stating that his claims are against both Hicinbothems employed at Corcoran, he
has failed to file an amended complaint alleging claims against these two individuals.

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