Siegrist v. California Department of Corrections et al

Filing 52

ORDER DISMISSING Defendant J. J. Johnson, Without Prejudice, Pursuant to Rule 4(M) of the Federal Rules of Civil Procedure signed by District Judge Lawrence J. O'Neill on 4/30/2015. (Sant Agata, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

VANALBERT SIEGRIST,

12
13
14
15
16
17
18
19
20
21

Plaintiff,
v.
J.J. JOHNSON, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

Case No.: 1:10-cv-01976-LJO-SAB (PC)
ORDER DISMISSING DEFENDANT J.J.
JOHNSON, WITHOUT PREJUDICE, PURSUANT
TO RULE 4(M) OF THE FEDERAL RULES OF
CIVIL PROCEDURE
[ECF Nos. 43, 44, 50]

Plaintiff Vanalbert Siegrist is a state prisoner appearing pro se and in forma pauperis in this
civil rights action pursuant to 42 U.S.C. § 1983.
I. PROCEDURAL BACKGROUND
This action is proceeding against Defendants J. J. Johnson, Stringer, and Dutra for deliberate
indifference to a serious medical need in violation of the Eighth Amendment.

22

The United States Marshal has not been able to locate and serve Defendant Johnson. (ECF No.

23

43.) Accordingly, on March 17, 2015, the Court ordered Plaintiff to show cause why Defendant J.J.

24

Johnson should not be dismissed pursuant to Rule 4(m). (ECF No. 44.)

25

Plaintiff filed a response to the order to show cause on April 16, 2015. (ECF No. 50.) Plaintiff

26

requests the Court compel the Warden to disclose the address for Defendant Johnson and/or to appoint

27

counsel to assist Plaintiff is discovering the address for Defendant Johnson.

28
1

1
2

II. DISCUSSION
In cases, involving a plaintiff proceeding in forma pauperis, a United States Marshal, upon

3

order of the Court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3); 28 U.S.C. §

4

1915(d). ‘“[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the

5

U.S. Marshal for service of the summons and complaint and … should not be penalized by having his

6

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

7

perform his duties.’” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett v.

8

Blandford, 912 F.2d 270, 275 (9th Cir. 1990), overruled on other grounds by Sandin v. Conner, 515

9

U.S. 472, 483–84 (1995). “So long as the prisoner has furnished the information necessary to identify

10

the defendant, the marshal’s failure to effect service is ‘automatically good cause….” Walker, 14 F.3d

11

at 1422 (quoting Sellers v. United States, 902 F.2d 598, 603 (7th Cir. 1990)). Thus, while an

12

incarceration pro se litigant proceeding in forma pauperis is entitled to rely on the service of the

13

summons and complaint by the U.S. Marshal, the U.S. Marshal can attempt service only after being

14

provided with the necessary information to effectuate service. Puett, 912 F.2d at 275.

15

However, where a pro se plaintiff fails to provide the Marshal with accurate and sufficient information

16

to effect service of the summons and complaint, the Court’s sua sponte dismissal of the unserved

17

defendants is appropriate. Walker, 14 F.3d at 1421-1422.

18

As Plaintiff has been previously informed, because the Marshal has been unable to ascertain

19

the proper location for Defendant J.J. Johnson, Plaintiff must provide further information for service

20

of the process or suffer dismissal of his claims against Defendant J.J. Johnson. See Walker, 14 F.3d at

21

1421-1422 (holding prisoner failed to show cause why prison official should not be dismissed under

22

Rule 4(m) where prisoner failed to show he had provided Marshal with sufficient information to

23

effectuate service). In this instance, the Marshal forwarded the service packet to Pleasant Valley State

24

Prison, in Coalinga, California, which was forwarded to the special investigator who was unable to

25

locate Defendant J. J. Johnson. (ECF No. 43.)

26

The Court does not have the authority to compel the Warden, who is not a party to this action,

27

to provide Plaintiff with the address for J.J. Johnson. See Zenith Radio Corp. v. Hazeltine Research,

28

Inc., 395 U.S. 100, 110 (1969) (“a court has no power to adjudicate a personal claim or obligation
2

1

unless it has jurisdiction over the person of the defendant.”) (emphasis added); S.E.C. v. Ross, 504

2

F.3d 1130, 1138-39 (9th Cir. 2007).

3

In addition, although in certain exceptional circumstances the court may request the voluntary

4

assistance of counsel pursuant to section 1915(e)(1), Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir.

5

1997), the fact that Plaintiff is unable to locate and provide an address for service of Defendant J.J.

6

Johnson does not present extraordinary circumstances to justify the appointment of counsel, as such

7

circumstance is common to almost all prisoners.

8

The attempts to identify and locate Defendant J.J. Johnson have been unsuccessful and

9

Plaintiff has not provided a current address. Consequently, because Plaintiff has not served Defendant

10

J.J. Johnson, provided sufficient information for the Marshal to do so, or shown good cause for his

11

failure to do so, Defendant J.J. Johnson must be dismissed, without prejudice, pursuant to Rule 4(m).
III. ORDER

12
13
14

Based on the foregoing, it is HEREBY ORDERED that Defendant J.J. Johnson is DISMISSED
from the action, without prejudice, pursuant to Federal Rule of Civil Procedure 4(m).

15
16
17
18

IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

April 30, 2015

UNITED STATES DISTRICT JUDGE

19
20
21
22
23
24
25
26
27
28
3