Glass v. Woodford et al

Filing 106

ORDER DISMISSING Defendant Grandy for Failure to Effect Service of Process signed by Chief Judge Anthony W. Ishii on 8/3/2012. S. Grandy terminated. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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DONALD GLASS,

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CASE NO. 1:09-cv-00098-AWI-BAM PC
Plaintiff,

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v.

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ORDER DISMISSING DEFENDANT GRANDY
FOR FAILURE TO EFFECT SERVICE OF
PROCESS

R. FIELDS, et al.,

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(ECF Nos. 93, 99)
Defendants.
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Plaintiff Donald Glass (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the

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complaint, filed January 5, 2009, against Defendants Hamilton, Robles, Logue, and Bautista for

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excessive force in violation of the Eighth Amendment; Defendants Grandy, Riddle, and McDonald

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for deliberate indifference to serious medical needs in violation of the Eighth Amendment; and

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Defendants Hamilton, Bautista, Logue, Robles, Riddle, Cedillos, Grandy, and McDaniel for

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retaliation in violation of the First Amendment.1

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On October 25, 2011, an order issued requiring Plaintiff to show cause why Defendant

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Grandy should not be dismissed from this action due to Plaintiff’s failure to provide information

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sufficient to effect service of process on the defendant. Plaintiff was specifically advised that

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pursuant to Federal Rule of Civil Procedure 4(m), the court may, on its own motion, after notice to

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Plaintiff, dismiss a defendant who has not been served within 120 days after the complaint has been

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On August 31, 2011, Doe Defendants were dismissed from the action for Plaintiff’s failure to effect service
of process. (ECF No. 58.)

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filed. Plaintiff was also advised that, so long as he provides the United States Marshal with the

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information necessary to identify the defendant, good cause exists to extend the time for service set

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out in Rule 4(m). Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett v.

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Blandford, 912 F.2d 270, 275 (9th Cir. 1990)) abrogated in part on other grounds by Sandin v.

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Conner, 515 U.S. 472 (1995). On December 30, 2011, Plaintiff filed a response stating that Grandy

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should not be dismissed because the California Department of Corrections and Rehabilitation

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(“CDCR”) has a custom and policy of instructing prison officials who are being sued to temporarily

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retire or hide to evade service of process and requesting the CDCR be required to provide the address

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at which Defendant Grandy was receiving retirement benefits. On March 6, 2012, an order issued

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directing the United States Marshal to attempt to effect personal service at Defendant Grandy’s last

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known address. Plaintiff was advised that this was the final attempt to procure service on Defendant

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Grandy and if the United States Marshal was unable to locate and serve Defendant Grandy he would

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be dismissed from this action for failure to effect service of process. On May 11, 2012, the summons

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was returned unexecuted, stating that the current owner has lived at the address for the past three

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months and has no information on Defendant Grandy.

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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.

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On October 4, 2010, the waiver of service for Defendant Grandy was returned unexecuted.

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The United States Marshall attempted to execute service on Defendant Grandy at California State
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Prison, Corcoran, and was unsuccessful being informed that Defendant Grandy had retired. (ECF

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No. 36.) On April 7, 2011, a second order issued directing the United States Marshall to contact the

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Office of Legal Affairs to attempt to execute service on Defendant Grandy. (ECF No. 43.) On May

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2, 2011, the summons was returned unexecuted, stating that the CDCR does not have a current

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address for Defendant Grandy. A letter sent to Defendant Grandy at his last known address was

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returned “not at this address.” (ECF No. 45.) On March 29, 2012, the Marshal attempted service

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of process at Defendant Grandy’s last known address and was advised that the current owner had no

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information regarding Defendant Grandy. (ECF No. 99.)

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The Marshal has attempted to serve Defendant Grandy on three separate occasions and has

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been unsuccessful in locating the defendant. The Court does not find good cause to order the

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Marshal to make a fourth attempt at service.

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Accordingly, Defendant Grandy 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:
0m8i78

August 3, 2012
CHIEF UNITED STATES DISTRICT JUDGE

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