Coats v. Chaudhri et al

Filing 67

ORDER to SHOW CAUSE Why Defendants Convalecer and Gundran Should Not be Dismissed From This Action for Failure to Provide Sufficient Information to Effectuate Service signed by Magistrate Judge Barbara A. McAuliffe on 1/19/2018. Show Cause Response due within thirty (30) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WILLIAM THOMAS COATS,

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Plaintiff,
v.
MUHAMMAD CHAUDHRI, et al.,

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Case No. 1:13-cv-02032-AWI-BAM (PC)
ORDER TO SHOW CAUSE WHY
DEFENDANTS CONVALECER AND
GUNDRAN SHOULD NOT BE DISMISSED
FROM THIS ACTION FOR FAILURE TO
PROVIDE SUFFICIENT INFORMATION TO
EFFECTUATE SERVICE

Defendants.
(ECF Nos. 63, 64)

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THIRTY (30) DAY DEADLINE

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I.

Introduction

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Plaintiff William Thomas Coats (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this

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action on December 12, 2013. This action proceeds against Defendants Convalecer, Fairchild,

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Gladden, Gundran, and Nguyen for deliberate indifference to serious medical needs. This matter

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was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local

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Rule 302.

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II.

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On November 6, 2017, the Court issued an order directing the United States Marshal to

Service by the United States Marshal

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initiate service of process in this action upon Defendants Convalecer, Fairchild, Gladden, and

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Gundran. (ECF No. 57.) On January 11, 2018, the United States Marshal filed executed waivers
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of service for Defendants Gladden and Nguyen, (ECF No. 65), and returns of service unexecuted

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as to Defendants Convalecer and Gundran, (ECF Nos. 63, 64).1

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Federal Rule of Civil Procedure 4(m) provides as follows:

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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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Fed.R.Civ.P. 4(m).

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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 or her action dismissed

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

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duties required of each of them . . . .” Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). “So

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long as the prisoner has furnished the information necessary to identify the defendant, the

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

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1415, 1422 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472, 115

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(1995). 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 defendant is appropriate. Walker, 14 F.3d at 1421–22.
Here, the U.S. Marshal attempted to serve Defendants Convalecer and Gundran with the

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information that Plaintiff provided. However, the Marshal was informed that Defendants

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Convalecer and Gundran could not be served at the institution, and no forwarding information

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was available. (ECF Nos. 63, 64.) Plaintiff therefore has not provided sufficient information to

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identify and locate Defendants Convalecer and Gundran for service of process. If Plaintiff is

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unable to provide the Marshal with the necessary information to identify and locate these

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defendants, Defendants Convalecer and Gundran shall be dismissed from this action, without

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The Court has not yet received an executed waiver or return of service for Defendant Fairchild.

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prejudice. Pursuant to Rule 4(m), the Court will provide Plaintiff with the opportunity to show

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cause why Defendants Convalecer and Gundran should not be dismissed from the action at this

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time.

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III.

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

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Conclusion and Order

Within thirty (30) days from the date of service of this order, Plaintiff shall show

cause why Defendants Convalecer and Gundran should not be dismissed from this action; and
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The failure to respond to this order or the failure to show cause will result in

the dismissal of Defendants Convalecer and Gundran from this action.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

January 19, 2018

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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