Gordon v. Elloyhim

Filing 16

ORDER DISMISSING Plaintiff's Complaint Against Defendant Without Prejudice for Failure to Effect Service and Denying Motion for Appointment of Counsel as Moot. Signed by Judge Jinsook Ohta on 5/10/2022.(All non-registered users served via U.S. Mail Service)(axc)

1
2

3
4

5
6
7

UNITED STATES DISTRICT COURT

8

SOUTHERN DISTRICT OF CALIFORNIA

9

10
11

SHERBL Y WAYNE GORDON,

Case No.: 21cv1346-JO-JLB
Plaintiff,

12
13

V.

14

DR. ELLOYHIM,
Defendant.

15
16

ORDER DISMISSING PLAINTIFF'S
COMPLAINT AGAINST
DEFENDANT WITHOUT
PREJUDICE FOR FAILURE TO
EFFECT SERVICE AND DENYING
MOTION FOR APPOINTMENT OF
COUNSEL AS MOOT

17

18
19
20

On January 28, 2022, this Court ordered Plaintiff Sherbly Wayne Gordon

21

("Plaintiff') to show cause on or before April 28, 2022, as to why his Complaint should

22

not be dismissed for failure to effect service. Dkt. 8. On April 11, 2022, Plaintiff filed a

23

motion to appoint counsel. Dkt. 15. Plaintiff has not filed a response to the order to

24

show cause. For the reasons discussed below, Plaintiffs Complaint is DISMISSED

25

without prejudice for failure to effect service and the motion to appoint counsel is

26

DENIED as moot.

27

28

21 CV 1346-JO-JLB

I.

1

BACKGROUND

2

On July 26, 2021, Plaintiff, incarcerated at the Richard J. Donovan Correctional

3

Facility, filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983. Dkt. 1

4

("Complaint"). Plaintiff alleges that Defendant Dr. Elloyhim ("Defendant") refused his

5

request for mental health services when he complained of suicidal thoughts. Id. at 3-4. On

6

August 11, 2021, the Court granted Plaintiffs motion to proceed in forma pauperis ("IFP")

7

and directed the U.S. Marshal to effect service on Defendant in accordance with Plaintiffs

8

completed U.S. Marshal Form 285 ("Form 285"). Dkt. 5. A summons was issued, and the

9

Court provided Plaintiff with a blank Form 285, a certified copy of the IFP Order, a

10

certified copy of the Complaint, and the summons (collectively, the "IFP Package"). The

11

Court ordered Plaintiff to return the IFP Package and the completed Form 285 to the U.S.

12

Marshal. Id. Plaintiff did not return the IFP Package to the U.S. Marshal, and Plaintiff

13

failed to serve Defendant within 90 days of filing the Complaint pursuant to Fed. R. Civ.

14

P. 4(m).

15

On January 28, 2022, the Court ordered Plaintiff to show cause as to why the

16

Complaint should not be dismissed for failure to prosecute. Dkt. 8 ("OSC"). The Court

17

stated that failure to respond by April 28, 2022 to the OSC will result in dismissal of the

18

action. On February 9, 2022, Plaintiff filed another motion to proceed IFP, and on March

19

4, 2022, Plaintiff filed a motion to appoint counsel. Dkts. 9, 11. On March 9, 2022, the

20

Court issued an order denying the motion to proceed IFP as moot, denying the motion to

21

appoint counsel without prejudice, and extending the time for service for good cause under

22

Fed. R. Civ. P. 4(m). Dkt. 12. Accordingly, the Court directed the Clerk to provide

23

Plaintiff with a new IFP Package, and ordered Plaintiff to complete and return the IFP

24

Package to the U.S. Marshal on or before April 14, 2022. The Court warned Plaintiff that

25

failure to return the completed IFP Package to the U.S. Marshal by April 14, 2022, or to

26

otherwise show cause by April 28, 2022, would result in dismissal of Plaintiffs Complaint

27

for failure to prosecute. To date, service has not been effectuated on Defendant, and

28
2

21cv1346-JO-JLB

1 Plaintiff has neither filed a response to the OSC nor requested an extension of time to do
2

3
4

so. On April 11, 2022, Plaintiff filed another motion to appoint counsel. Dkt. 15.

II.

DISCUSSION

Federal Rule of Civil Procedure 4 provides in relevant part that "[i]f a

5

defendant is not served within 90 days after the complaint is filed, the court-on motion

6

or on its own after notice to the plaintiff-must dismiss the action without prejudice

7

against that defendant or order that service be made within a specified time." Fed. R.

8

Civ. P. 4(m). Rule 4 also provides that "if the plaintiff shows good cause for the failure,

9

the court must extend the time for service for an appropriate period." Id. If a plaintiff is

10

authorized to proceed IFP under 28 U.S.C. § 1915, the court must order that service be

11

effectuated by a United States Marshal. Fed. R. Civ. P. 4(c)(3); see also 28 U.S.C. §

12

1915(d) (when a plaintiff proceeds IFP, "[t]he officers of the court shall issue and serve

13

all process, and perform all duties"). While a plaintiff proceeding IFP is entitled to rely

14

on the U.S. Marshal for service of the summons and complaint, he is responsible for

15

providing the information, such as an address, needed to effectuate service. Puett v.

16

Blandford, 912 F.2d 270,275 (9th Cir. 1990). The Court's local rules similarly provide

17

that "the party at whose request the summons is issued is responsible for providing the

18

United States Marshal's office with appropriate instructions regarding the person upon

19

whom service is made." S.D. Cal. Civ. R. 4.l(c).

20

In this case, the Court directed the U.S. Marshal to effect service upon Defendant,

21

a summons was issued, and the Court sent Plaintiff the IFP Package on August 11, 2021.

22

Plaintiff failed to return the IFP Package, and Defendant was not served within the 90

23

days as required by Rule 4(m). Although the initial 90 days to serve Defendant had

24

passed, the Court extended the time for service for good cause until April 14, 2022 and

25

provided Plaintiff with a new IFP Package. However, Plaintiff has failed to serve

26

Defendant by the specified time for service. Furthermore, Plaintiff has not filed a

27

response to the OSC issued by this Court and has not otherwise established good cause

28

for his failure to serve Defendant. Accordingly, the Court finds that Plaintiff failed to
3
21 CV 1346-JO-JLB

1

effect service on Defendant pursuant to Rule 4(m) and DISMISSES the Complaint

2

without prejudice.

3

III.

CONCLUSION

4

The Court hereby DISMISSES the Complaint without prejudice and DENIES
5

Plaintiffs motion to appoint counsel (Dkt. 15) as moot.
6

7

IT IS SO ORDERED.

8
9

Dated:

10
11

12

Hono a e Jinsook Ohta
United States District Judge

13
14
15
16
17
18
19
20

21
22
23

24
25

26
27
28
4

21 cv 1346-JO-JLB