Colbert v. Chavez et al

Filing 38

ORDER Dismissing Defendant Doucan from Action pursuant to Rule 4(M), signed by District Judge Anthony W. Ishii on 4/18/14. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GEORGE K. COLBERT,
Plaintiff,

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v.
P. CHAVEZ, et al.,
Defendants.

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Case No.: 1:10-cv-00250-AWI-SAB (PC)
ORDER DISMISSING DEFENDANT DOUCAN
FROM ACTION PURSUANT TO RULE 4(M)
[ECF No. 36]

Plaintiff George K. Colbert is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.

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This action is proceeding against Defendants Chavez, Doucan, Lindsey, Emard, Flores,

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Razmirez, and Farnsworth for excessive force in violation of the Eighth Amendment, and against

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Defendants Chavez, Doucan, Lindsey, Emard, Flores, and Ramirez for retaliation in violation of the

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First Amendment.

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On December 23, 2013, the United States Marshal returned the summons executed as to

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Defendant Doucan with a notation that the California Department of Corrections and Rehabilitation

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has been unable to identify and locate Defendant Doucan.

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On January 24, 2014, the Court ordered Plaintiff to show cause why Defendant Doucan should

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not be dismissed from the action pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.

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Plaintiff filed a response on March 31, 2014.

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Rule 4(m) of the Federal Rules of Civil Procedure provides:

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If a defendant is not served within 120 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.

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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. 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3).

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“[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal

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for service of the summons and complaint and [he] should not be penalized by having his action

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dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to perform

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his duties.” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (internal quotations and citation

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omitted), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). “So long as the

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prisoner has furnished the information necessary to identify the defendant, the marshal’s failure to

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effect service is automatically good cause. . . .” Walker, 14 F.3d at 1422 (internal quotations and

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citation omitted). However, where a pro se plaintiff fails to provide the Marshal with accurate and

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sufficient information to effect service of the summons and complaint, the Court’s sua sponte

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dismissal of the unserved defendants is appropriate. Walker, 14 F.3d at 1421-22.

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In response to the order to show cause, Plaintiff contends, without explanation, that discovery

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is necessary to ascertain the identity of Defendant Doucan. It is clear in the complaint and the Court’s

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screening order that Plaintiff named Sergeant Doucan as a defendant in this action, and Plaintiff fails

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to explain why discovery is necessary to ascertain the identity of Defendant Doucan as identified in his

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complaint. The mere fact that the CDCR is unable to identify and/or locate Defendant Doucan does

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not equate to the wrong identity of this Defendant. Plaintiff has failed to show cause why Defendant

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Doucan should not be dismissed from the action pursuant to Rule 4(m) of the Federal Rules of Civil

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Procedure.

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Accordingly, IT IS HEREBY ORDERED that Defendant Doucan is DISMISSED from this
case pursuant to Federal Rule of Civil Procedure 4(m).

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IT IS SO ORDERED.

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Dated: April 18, 2014

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SENIOR DISTRICT JUDGE

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