(PC)Calloway v. Youssee et al

Filing 31

ORDER TO SHOW CAUSE WHY DEFENDANT T. LOAR SHOULD NOT BE DISMISSED FROM THIS ACTION FOR FAILURE TO PROVIDE SUFFICIENT INFORMATION TO EFFECTUATE SERVICE 25 ,signed by Magistrate Judge Barbara A. McAuliffe on 8/1/2022.( Show Cause Response due within 30-Day Deadline)(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMISI JERMAINE CALLOWAY,

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Plaintiff,

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v.

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YOUSSEE, et al.,

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Case No. 1:21-cv-01450-JLT-BAM (PC)
ORDER TO SHOW CAUSE WHY
DEFENDANT T. LOAR SHOULD NOT BE
DISMISSED FROM THIS ACTION FOR
FAILURE TO PROVIDE SUFFICIENT
INFORMATION TO EFFECTUATE
SERVICE

Defendants.
(ECF No. 25)
THIRTY (30) DAY DEADLINE
Plaintiff Jamisi Jermaine Calloway (“Plaintiff”) is a state prisoner proceeding pro se in

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this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s first

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amended complaint against Defendants Y. Rao, D. Pilar, H. Diaz, T. Loar, and H. Smuzynski for

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deliberate indifference to serious medical needs in violation of the Eighth Amendment when they

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released Plaintiff from a suicide crisis bed, and against Defendants D. A. Lopez and M. Cuevas

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for deliberate indifference to serious medical needs in violation of the Eighth Amendment when

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they failed to intervene during Plaintiff’s two suicide attempts.

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On June 21, 2022, the Court issued an order directing service on Defendants Y. Rao, D.

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Pilar, H. Diaz, T. Loar, H. Smuzynski, D. A. Lopez, and M. Cuevas under the Court’s E-Service

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pilot program for civil rights cases for the Eastern District of California. (ECF No. 25.) The

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order included the following information regarding Defendant Loar: “T. Loar, Psychologist,
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KVSP; on or about May 20, 2020.” (Id. at 2.) On July 29, 2022, the Court received information

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that Defendant Loar could not be identified.

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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.

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Here, the U.S. Marshal attempted to electronically serve Defendant Loar with the

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information that Plaintiff provided. However, the Marshal was informed that there was not

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enough information to identify Defendant Loar for service of process. If Plaintiff is unable to

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provide the Marshal with the necessary information to identify and locate this defendant,

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Defendant Loar shall be dismissed from this action, without prejudice.

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

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why Defendant Plata should not be dismissed from the action at this time. Plaintiff may respond

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to this order by providing additional information that will assist the Marshal in identifying
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Defendant Loar for service of process.
Based on the foregoing, it is HEREBY ORDERED that:
1. Within thirty (30) days from the date of service of this order, Plaintiff shall show cause
why Defendant Loar should not be dismissed from this action; and
2. The failure to respond to this order or the failure to show cause will result in the

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dismissal of any unidentified defendant from this action due to Plaintiff’s failure to

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serve process pursuant to Federal Rule of Civil Procedure 4(m).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

August 1, 2022

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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