Opinion
2:21-cv-02118-DAD-JDP (PC)
10-23-2023
CYMEYON HILL, Plaintiff, v. ESCOBAR, et al., Defendants.
DIRECTING PLAINTIFF TO PROVIDE ADDITIONAL INFORMATION TO EFFECT SERVICE ON DEFENDANTS ECF No. 27
JEREMY D. PETERSON, UNITED STATES MAGISTRATE JUDGE
Plaintiff, a civil detainee, is proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. On November 14, 2022, I directed serve on defendant Rios and Bonache under the court's E-Service pilot program. ECF No. 16. Process directed to both defendants was returned unserved because CDCR could not identify either defendant. ECF No. 18. Accordingly, I directed plaintiff to provide additional information to serve these defendants. ECF No. 20. On May 8, 2023, plaintiff returned two completed USM-285, ECF No. 21, and I directed the United States Marshal to direct service on the two defendants. ECF No. 22. On September 7, 2023 the Marshal submitted the summons as unexecuted. ECF No. 25. Both unexecuted summonses have the same entry: “9/6/2023-Per CDCR, defendant is not an employee.” Id. Out of an abundance of caution, I issued another order directing plaintiff to promptly seek information for defendants address through discovery, the California Public Records Act, Calif. Gov't. Code § 6250, et seq., or other means available. ECF No. 26. I also instructed plaintiff to provide a physical address, as he had previously provided a P.O. box. Id. at 2. I instructed plaintiff to complete and return to the court, within thirty days, the USM-285 forms and summons which are required to effect service on the defendants. Id. On October 16, 2023, plaintiff submitted the USM-285 forms but failed to provide new address for service on defendants Rios and Bonache. Indeed, he listed the same address I previously advised him was insufficient-“CSP Sacramento Prison, P.O. Box 290066, Represa CA 92671.”
If a defendant is not served within ninety days after a complaint is filed, the court must, after notice to the plaintiff, dismiss the action without prejudice. Fed.R.Civ.P. 4(m). While prisoners may rely on the U.S. Marshal's Office to serve a defendant, a district court may dismiss a prisoner's civil rights complaint for a failure to effect service when the prisoner fails to provide the U.S. Marshals with sufficient information to serve a defendant. See Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) overruled on other grounds by Sandin v. Conner, 515 U.S. 472, 483-84 (1995)); Wilson v. Moreno, No. ED-CV-14-513-JAK (DFM), 2016 WL 827702, at *5 (C.D. Cal. Feb. 8, 2016) (“Courts regularly dismiss actions for failure to make service under Fed.R.Civ.P. 4(m) when a plaintiff provides the USMS with an inaccurate or obsolete address for a defendant.”).
Plaintiff will be afforded a final opportunity to provide an address or contact information for defendants. Should plaintiff fail to do so, I will recommend that this action be dismissed pursuant to Federal Rule of Civil Procedure 4(m).
Accordingly, IT IS HEREBY ORDERED that:
1. The Clerk of Court is directed to send to plaintiff two USM-285 forms with instruction; and
2. Within thirty days from the date of this order, plaintiff shall complete and submit the attached Notice of Submission of Documents to the court, with the two completed USM-285 forms required to effect service on defendants Rios and Bonache.
3. Failure to comply with this order and return the copies within the specified time period will result in a recommendation that this action be dismissed.
IT IS SO ORDERED.
NOTICE OF SUBMISSION OF DOCUMENTS
Plaintiff hereby submits the following documents in compliance with the court's order filed___:
__ completed USM-285 forms.