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