Tatum v. Buckley

Filing 21

ORDER TO SHOW CAUSE Show Cause Response due by 7/3/2012.. Signed by Judge Lucy H. Koh on 6/12/12. (Attachments: # 1 certificate of mailing)(mpb, COURT STAFF) (Filed on 6/13/2012)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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IRVIN T. TATUM,

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Plaintiff,
v.
C. BUCKLEY, et al.,

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Defendants.

) No. C 11-4864 LHK (PR)
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) ORDER TO SHOW CAUSE
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Plaintiff, a state prisoner proceeding pro se, filed a civil rights complaint pursuant to 42

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U.S.C. § 1983. On December 21, 2011, the Court reviewed Plaintiff’s complaint and determined

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that he alleged cognizable claims for relief. The Court further recognized that, because Plaintiff

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had paid the filing fee, he could not rely upon the United States Marshal for service upon the

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named Defendants. Plaintiff was directed to provide the Court with proofs of service of the

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summons and complaint on all the Defendants, or show good cause why they should not be

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dismissed. On January 30, 2012, Plaintiff filed with the Court a motion for extension of time to

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file proofs of service. Plaintiff’s motion was granted. On March 2, 2012, Plaintiff filed with the

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Court a second motion for extension of time to file proofs of service. Plaintiff’s motion was

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again granted.

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On April 5, 2012, Plaintiff filed a declaration in support of proof of service. After

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reviewing the proof of service, it appears that none of the Defendants were properly served

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pursuant to Federal Rule of Civil Procedure 4(e). Rule 4(e) governs service on individual

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defendants and provides, in pertinent part: “an individual . . . may be served in a judicial district

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of the United States by . . . doing any of the following: (A) delivering a copy of the summons
Order To Show Cause
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and of the complaint to the individual personally; (B) leaving a copy of each at the individual’s

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dwelling or usual place of abode with someone of suitable age and discretion who resides there;

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or (C) delivering a copy of each to an agent authorized by appointment or by law to receive

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service of process.” See Fed. R. Civ. P. 4(e)(2). “Defendants must be served in accordance

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with [Rule 4], or there is no personal jurisdiction.” Jackson v. Hayakawa, 682 F.2d 1344, 1347

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(9th Cir. 1982) (citation omitted). “Neither actual notice, nor simply naming the person in the

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caption of the complaint, will subject defendants to personal jurisdiction if service was not made

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in substantial compliance with Rule 4.” Id. (internal citations omitted).

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Rule 4(e) also provides for service in accordance with state law, see Fed. R. Civ. P.

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4(e)(1); see also Cal. Code Civ. Pro. § 415.10 (physical delivery to the defendant personally);

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Cal. Code Civ. Pro. §§ 415.20, 415.95 (delivery at usual abode or place of business); Cal. Civ.

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Pro. § 415.30 (mail with acknowledgment of receipt).

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The Court recognizes that Plaintiff is proceeding pro se in this action. Plaintiff’s status

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as pro se litigant, however, does not excuse him from compliance with the Federal Rules of Civil

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Procedure. See, e.g., McNeil v. United States, 508 U.S. 106, 113 (1993) (noting the Supreme

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Court has “never suggested that procedural rules in ordinary civil litigation should be interpreted

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so as to excuse mistakes by those who proceed without counsel”). Plaintiff has the burden of

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establishing that he accomplished service of process in compliance with the Federal Rules of

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Civil Procedure. See Fed. R. Civ. P. 4(l)(1). If a defendant has not been served within 120 days

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after the complaint is filed, “the court - on motion or on its own after notice to the plaintiff -

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must dismiss the action without prejudice against that defendant or order that service be made

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within a specified time.” Fed. R. Civ. P. 4(m).

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Plaintiff was supposed to serve Defendants A. Perez, PT Smith, G. Lewis, and J. Rush at

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at Pelican Bay State Prison, and B. Alkire, D. Foston, and C. Buckley at the California

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Department of Corrections and Rehabilitation. Plaintiff’s declaration indicates that he hired TIF

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Services, LLC, to serve Defendants. The process server submitted a declaration declaring under

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penalty of perjury that she “served a copy of the Summons and Civil Complaint . . . by placing

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said documents in a sealed envelope . . . to each [Defendant] at their respective address of
Order To Show Cause
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employment.” (Docket No. 20 at 3.)

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It appears that Plaintiff attempted to effect service of process under state law, as

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authorized by Federal Rule of Civil Procedure 4(e)(1), by mailing copies of the summonses and

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complaint to Defendants. It does not appear that Plaintiff attempted to effect service under

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federal law pursuant to Rule 4(e)(2) because he did not personally deliver copies of the

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summonses and complaint to Defendants, leave copies of the summonses and complaint at

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defendants’ dwellings, or provide copies of the summonses and complaint to Defendants’

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authorized agents. See Fed. R. Civ. P. 4(e)(2). In addition, Plaintiff has not demonstrated that he

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used “reasonable diligence” to “personally” serve Defendants before resorting to “substituted

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service,” as required by California Civil Procedure Code section 415.20(b). Moreover, in order

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to effectuate service of process by mail, a plaintiff must mail a copy of the summons and

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complaint, two copies of a notice and acknowledgment of receipt form, and a return envelope,

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postage prepaid, addressed to the sender. Cal. Code Civ. Pro. § 415.30(a). Based on the proof of

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service that Plaintiff has submitted, he has not properly served any Defendant under the

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California rules, despite the Court’s admonition that the failure to properly and timely serve

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Defendants could result in dismissal.

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It appears that none of the Defendants were personally served with the summonses and

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complaint pursuant to Federal Rule of Civil Procedure 4(e)(2) or otherwise properly served in

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accordance with California law pursuant to Rule 4(e)(1). Because the Defendants have not been

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served within the time ordered by the Court, see Fed. R. Civ. P. 4(m), Plaintiff is ordered to

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show cause within 20 days of the filing date of this order why Defendants should not be

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dismissed without prejudice. Failure to demonstrate good cause within 20 days of the filing

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date of this order will result in the dismissal of this action without prejudice.

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IT IS SO ORDERED.
6/12/12
DATED:

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LUCY H. KOH
United States District Judge

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