Abercrombie v. Corcoran State Prison et al

Filing 23

ORDER signed by Magistrate Judge Gary S. Austin on 2/27/2014 for Plaintiff to SHOW CAUSE why this case should not be dismissed for failure to effect service upon Defendant, Kaut re 22 . Show Cause Response due by 4/1/2014.(Lundstrom, T)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 Plaintiff, 13 14 1:11-cv-00048-GSA-PC RICHARD ABERCROMBIE, ORDER FOR PLAINTIFF TO SHOW CAUSE WHY THIS CASE SHOULD NOT BE DISMISSED FOR FAILURE TO EFFECT SERVICE UPON DEFENDANT KAUT (Doc. 22.) vs. DR. KAUT, et al., 15 Defendants. THIRTY DAY DEADLINE 16 17 18 19 20 21 I. RELEVANT PROCEDURAL HISTORY Richard Abercrombie (“Plaintiff”) is a state prisoner proceeding pro se and in forma 22 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint 23 commencing this action on January 11, 2011. (Doc. 1.) On January 27, 2011, Plaintiff 24 consented to the jurisdiction of a Magistrate Judge under 28 U.S.C. § 636(c), and no other 25 parties have appeared in this action. (Doc. 5.) Therefore, pursuant to Appendix A(k)(4) of the 26 Local Rules of the Eastern District of California, the undersigned shall conduct any and all 27 proceedings in the case until such time as reassignment to a District Judge is required. Local 28 Rule Appendix A(k)(3). 1 1 This action now proceeds on Plaintiff's initial Complaint filed on January 11, 2011, 2 against sole defendant Dr. Richard M. Kaut (ADefendant@), for denial of medical care in 3 violation of the Eighth Amendment. (Doc. 1.) On January 21, 2014, the United States Marshal 4 (AMarshal@) filed a return of service unexecuted, indicating the Marshal was unable to locate 5 Defendant for service of process. (Doc. 22.) 6 II. SERVICE BY UNITED STATES MARSHAL 7 Pursuant to Rule 4(m), 8 If a defendant is not served within 120 days after the complaint is filed, the court B on motion or on its own after notice to the plaintiff B 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. 9 10 11 Fed. R. Civ. P. 4(m). 12 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of A>[A]n 13 the Court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(2). 14 incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal 15 for service of the summons and complaint and ... should not be penalized by having his action 16 dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to 17 perform his duties.=@ Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett v. 18 Blandford, 912 F.2d 270, 275 (9th Cir. 1990)), abrogated on other grounds by Sandin v. 19 Connor, 515 U.S. 472 (1995). ASo long as the prisoner has furnished the information necessary 20 to identify the defendant, the marshal=s failure to effect service is >automatically good cause . . . 21 .=@ 22 Cir.1990)). However, where a pro se plaintiff fails to provide the Marshal with accurate and 23 sufficient information to effect service of the summons and complaint, the Court=s sua sponte 24 dismissal of the unserved defendants is appropriate. Walker, 14 F.3d at 1421-22. Walker, 14 F.3d at 1422 (quoting Sellers v. United States, 902 F.2d 598, 603 (7th 25 Background 26 On January 13, 2012, the Court issued an order directing the Marshal to initiate service 27 of process upon Defendant in this action. (Doc. 13.) On April 19, 2013, the Marshal filed a 28 return of service unexecuted as to Defendant. (Doc. 15.) The return of service indicated that 2 1 on January 18, 2012, the Marshal mailed service documents to Defendant at Corcoran District 2 Hospital (ACDH@), at the address provided by Plaintiff. Id. On February 6, 2012, the mail was 3 returned, indicating that Defendant was not at that address. Id. On June 14, 2012, the Marshal 4 again attempted service by mail using a new address for Defendant, without success. Id. On 5 October 24, 2012, the Marshal sent the service documents to Defendant using a P.O. Box 6 address. Id. On March 21, 2013, after receiving no response from Defendant, the Marshal 7 forwarded the service documents for personal service. Id. The Marshal attempted personal 8 service on March 28, 2013, and discovered that Defendant has not been a tenant at the address 9 used since 2009. Id. 10 On April 22, 2013, the Court issued an order for Plaintiff to show cause why this case 11 should not be dismissed for failure to effect service upon defendant Kaut pursuant to Rule 12 4(m). (Doc. 16.) On May 13, 2013, Plaintiff responded and provided the Court with two new 13 addresses for defendant Kaut, (1) 2107 Livingston Street, Ste. A, Oakland, CA 94606, and (2) 14 6222 Seminary Ave., Oakland, CA 94605. (Doc. 18.) On May 15, 2013, the Court was 15 informed by the Marshal that personal service was attempted at the Livingston Street address in 16 March 2013, without success. On January 21, 2014, the Marshal filed a return of service 17 unexecuted as to Defendant. (Doc. 22.) The return of service indicated that on June 18, 2013, 18 the Marshal mailed service documents to Defendant at 6222 Seminary Ave., Oakland, CA 19 94605. Id. On January 7, 2014, after receiving no response from Defendant, the Marshal 20 forwarded the service documents for personal service. Id. The Marshal attempted personal 21 service on January 16, 2014 and found that Defendant was not recognized at that address. Id. 22 Pursuant to Rule 4(m), the Court will provide Plaintiff with another opportunity to 23 show cause why Defendant Kaut should not be dismissed from the action at this time for 24 inability to serve process. Plaintiff has not provided sufficient information to identify and 25 locate Defendant for service of process. The Marshal has made multiple attempts to locate this 26 Defendant at addresses provided by Plaintiff, without success. If Plaintiff is unable to provide 27 the Marshal with additional information, Defendant Kaut shall be dismissed from the action, 28 which will result in the dismissal of this action in its entirety. 3 1 III. CONCLUSION 2 Accordingly, based on the foregoing, it is HEREBY ORDERED that: 3 1. Within thirty (30) days from the date of service of this order, Plaintiff shall 4 show cause why Defendant Kaut should not be dismissed from this action 5 pursuant to Rule 4(m), dismissing this action in its entirety; and 6 2. 7 The failure to respond to this order or the failure to show cause will result in the dismissal of this action in its entirety. 8 9 10 11 IT IS SO ORDERED. Dated: 12 13 14 February 27, 2014 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE DEAC_Signature-END: 6i0kij8d 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?