Opinion
1:20-cv-01036-DAD-SKO (PC)
08-16-2021
JONATHAN DEWITT MCDOWELL, Plaintiff, v. ATKINSON, et al., Defendants.
ORDER DIRECTING RE-SERVICE ON DEFENDANT HERNANDEZ BY THE UNITED STATES MARSHALS SERVICE
SHEILA K. OBERTO UNITED STATES MAGISTRATE JUDGE
Plaintiff Jonathan Dewitt McDowell is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff's complaint for claims of excessive force and/or failure to intercede against Defendants Atkinson, Furlong, Leora, Harman, Hernandez, and Johnson. (Docs. 13, 15.) Plaintiff's claims stem from events at Kern Valley State Prison (KVSP). (Doc. 1.)
On April 22, 2021, the Court issued an order directing service on the defendants under the Court's e-service pilot program for civil rights cases in the Eastern District of California. (Doc. 16.) Thereafter, the Court received notice that the California Department of Corrections and Rehabilitation (CDCR) and the United States Marshal Service (USMS) possessed insufficient information to identify Defendant Hernandez. (Docs. 19, 20.)
On June 3, 2021, the Court issued an order to show cause why Defendant Hernandez should not be dismissed for failure to effect service. (Doc. 21.) Plaintiff responded to the order to show cause on June 25, 2021, providing additional identifying information regarding Defendant Hernandez. (Doc. 22.)
Given the additional information, on June 28, 2021, the Court issued a second order directing service of the complaint on Defendant Hernandez. (Doc. 23.) In the order, the Court identified Defendant Hernandez as follows: “Hernandez, . . . employed as a correctional officer at Kern Valley State Prison on July 9, 2019. Officer Hernandez is a Hispanic male, approximately 6 feet tall, with black hair. On or about July 9, 2019, Hernandez escorted Inmate McDowell from ‘building 7-C-facility to C-facility program office,' (Doc. 22 at 2), as well as to an administrative segregation unit. An Officer P. Hernandez (unclear if Defendant Hernandez) was also interviewed in response to a grievance filed regarding the July 9, 2019 incident underlying this lawsuit. (Doc. 1 at 15.)” (Id. at 2.)
On July 20 and July 22, 2021, the Court again received notice that the CDCR and the USMS possessed insufficient information to identify Defendant Hernandez. (Docs. 26, 27.) Per the USM-285 form filed by the USMS, the litigation coordinator at Kern Valley State Prison indicated that two officers with the name Hernandez worked the same facility at KVSP on the date in question, but that neither officer was involved in the events in question. (Doc. 27 at 3.)
From this response, it is unclear whether the litigation coordinator at KVSP used the additional information provided by the Court to attempt to identify Defendant Hernandez. Whether, in the prison's estimation, either of the two officers with the name Hernandez were “involved” in the subject incidents is not determinative of whether either of the officers match the description given by Plaintiff, such as, for example, whether either of the officers escorted Plaintiff from “building 7-C-facility to C-facility program office, ” or to an administrative segregation unit on July 9, 2019. For these reasons, the Court finds it appropriate to direct the USMS to attempt re-service on Defendant Hernandez.
Accordingly, the Court ORDERS:
1. The Clerk of the Court is directed to forward the following documents to the United States Marshals Service:
a. One completed summons for Defendant Hernandez;
b. One completed USM-285 form for Defendant Hernandez;
c. Two copies of the endorsed complaint (Doc. 1);
d. Two copies of this order; and
e. One copy of Plaintiff's June 25, 2021 response to the Court's order to show cause (Doc. 22).
2. Within 14 days of this order, the USMS is directed to notify the following defendant of the commencement of this action and to request a waiver of service in accordance with Federal Rule of Civil Procedure 4(d) and 28 U.S.C. § 566(c):
a. Correctional Officer Hernandez, a correctional officer at Kern Valley State Prison on July 9, 2019. Officer Hernandez is a Hispanic male, approximately 6 feet tall, with black hair. On or about July 9, 2019, Officer Hernandez escorted Inmate McDowell from “building 7-C-facility to C-facility program office” as well as to an administrative segregation unit.
3. The USMS is directed to retain the summons and a copy of the complaint in its file for future use.
4. The USMS shall file the returned waiver of service, or the request for waiver of service if returned as undelivered, as soon as it is received.
5. If a waiver of service is not returned by the defendant within 60 days of the date of mailing the request for waiver, the USMS shall personally serve process and a copy of this order upon the defendant in accordance with Rule 4 of the Federal Rules of Civil Procedure and 28 U.S.C. § 566(c). The USMS shall command all necessary assistance from the Office of Legal Affairs for CDCR to effect service, and it may seek the assistance of a special investigator if the litigation officer at the institution is unable to assist in identifying and/or locating the defendant. If any confidential information is provided by a third party to effect service, including by CDCR, the USMS shall maintain the confidentiality of the information.
6. Within 10 days after personal service is effected, the USMS shall file a return of service for the defendant, along with evidence of any attempts to secure a waiver of service of process and of the costs subsequently incurred in effecting service on said defendant. Said costs shall be enumerated on the USM-285 form and shall include the costs incurred by the USMS for photocopying additional copies of the summons and complaint and for preparing new USM-285 forms, if required. Costs of service will be taxed against the personally served defendant in accordance with Fed.R.Civ.P. 4(d)(2).
IT IS SO ORDERED.