Opinion
No. 2:11-cv-0518 GEB KJN P
08-22-2014
ANTHONY PENTON, Plaintiff, v. S. NUNEZ, Defendant.
ORDER AND ORDER TO SHOW CAUSE
I. Introduction
Plaintiff is a state prisoner proceeding without counsel and in forma pauperis. Service of process on S. Nunez, the sole remaining defendant, has been returned unexecuted. Plaintiff has filed a motion to compel discovery of defendant Nunez's current address and/or request for appointment of counsel. As explained below, the court denies plaintiff's motion, and orders plaintiff to show cause why this action should not be dismissed.
II. Background
In his original complaint, plaintiff named several individuals as defendants. However, the original and amended complaints were dismissed, and in the operative second amended complaint, plaintiff named only S. Nunez as a defendant. (ECF No. 44.) The Marshal's first attempt at service of process was returned unexecuted on October 10, 2013. (ECF No. 51.) By order filed November 27, 2013, plaintiff's motion to compel discovery of defendant Nunez's address was partially granted, and the Supervising Deputy Attorney General was asked to take all steps necessary to enlist the assistance from the California Department of Corrections and Rehabilitation ("CDCR") to obtain defendant Nunez's current address, and to provide such information to the U.S. Marshal. (ECF No. 53.) On December 17, 2013, the Supervising Deputy Attorney General filed a notice of compliance. (ECF No. 54.) On January 17, 2014, service of process on defendant Nunez was again returned unexecuted. (ECF No. 55.) The returned service was marked return to sender, wrong address. (ECF No. 55.) On February 13, 2014, the court again asked the Supervising Deputy Attorney General to take all steps necessary to locate defendant Nunez's current address and notify the U.S. Marshal. (ECF No. 56.) The Marshal's office confirmed that service of process at three different addresses was ineffective.
Plaintiff was cautioned that if such address could not be located through the CDCR, this action must be dismissed based on a failure to comply with Rule 4(m) of the Federal Rules of Civil Procedure. (ECF No. 56 at 2 n.1.) Plaintiff was reminded that he could seek such information through the California Public Records Act, Calif. Gov't. Code § 6250, et seq., or other means available to plaintiff. (ECF No. 56 at 2 n.1.)
On March 13, 2014, the Supervising Deputy Attorney General confirmed that the address previously provided to the U.S. Marshal was the last known address for defendant Nunez. (ECF No. 57.)
On March 26, 2014, the court informed plaintiff that the last known address for defendant Nunez had been provided to the U.S. Marshal, but that such service was returned unexecuted. (ECF No. 58.) Accordingly, it was incumbent upon plaintiff to provide additional information to serve defendant Nunez, and plaintiff was cautioned that failure to provide such information would result in the dismissal of this action. (ECF No. 58 at 2.)
On May 15, 2014, plaintiff filed the instant motion to compel discovery or appoint counsel. Plaintiff appended a request for production of documents, pursuant to California Public Records Act §§ 6250-6270, directed to the CDCR CSP-SAC litigation coordinator. (ECF No. 59 at 5-7.) Plaintiff seeks to compel discovery of defendant Nunez's current and previous addresses, current and previous employer's addresses, and phone numbers. Plaintiff also seeks to compel discovery of the defendant's CDCR duty roster and personnel records that might help plaintiff pursue the allegations in his original complaint, including departmental directives, local prison procedures, regulations, policies and practices to include directives, bulletins, and instructions to mail room personnel from 2007 to 2010 dealing with the processing of inmate outgoing and incoming regular and legal mail. (ECF No. 59 at 3.) Plaintiff argues that prison regulations forbid prisoners to obtain personal information on prison staff, which makes it difficult for plaintiff to pursue service of process on defendant S. Nunez. Thus, plaintiff seeks appointment of counsel to assist him in locating defendant Nunez, citing Johnson v. Howard, 20 F.Supp.2d 1128, 1129 (W.D. Mich. 1998.)
III. Legal Standards
Because plaintiff is proceeding in forma pauperis, he is responsible for providing the court with current addresses for all defendants so that service can be accomplished. See Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995). Rule 4 of the Federal Rules of Civil Procedure provides that:
[i]f 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.Fed. R. Civ. P. 4(m).
In cases involving a plaintiff proceeding in forma pauperis, a United States Marshal, upon order of the court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3); 28 U.S.C. § 1915(d). "'[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the summons and complaint and . . . should not be penalized by having his action dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to perform his duties.'" Walker, 14 F.3d at 1422 (quoting Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). "So long as the prisoner has furnished the information necessary to identify the defendant, the marshal's failure to effect service is 'automatically good cause. . . .'" Walker, 14 F.3d at 1422 (quoting Sellers v. United States, 902 F.2d 598, 603 (7th Cir. 1990)). Thus, while an incarcerated pro se litigant proceeding in forma pauperis is entitled to rely on the service of the summons and complaint by the U.S. Marshal, the U.S. Marshal can attempt service only after being provided with the necessary information to effectuate service. Puett, 912 F.2d at 275.
However, where a pro se plaintiff fails to provide the Marshal with accurate and sufficient information to effect service of the summons and complaint, the court's sua sponte dismissal of the unserved defendants is appropriate. Walker, 14 F.3d at 1421-22.
IV. Discussion
As plaintiff has been previously informed, because plaintiff has been unable to ascertain the proper location where defendant S. Nunez may now be served, he must remedy the situation or face dismissal of his claims against defendant Nunez. See Walker, 14 F.3d at 1421-22 (holding prisoner failed to show cause why prison official should not be dismissed under Rule 4(m) where prisoner failed to show he had provided Marshal with sufficient information to effectuate service). The court has sought the assistance of the CDCR, through the Supervising Deputy Attorney General, on two separate occasions, and service of process on defendant Nunez's last known address held by the CDCR has been returned unexecuted. Because it appears the CDCR does not have a more current address for defendant Nunez, discovery on the CDCR would not be productive.
Plaintiff seeks to compel the CSP-Sac litigation coordinator to comply with the California Public Records Act and produce the information requested therein (ECF No. 59 at 6-7). Plaintiff is advised that, under Rule 34 of the Federal Rules of Civil Procedure, "[a]ny party may serve on any other party a request" for production of documents. Fed. R. Civ. P. 34. Here, however, the litigation coordinator is not a party to this action, so the court cannot compel the litigation coordinator to produce documents pursuant to Rule 34. See Hatch v. Reliance Ins. Co., 758 F.2d 409, 415-16 (9th Cir. 1985); Viera v. Woodford, 258 Fed. Appx. 924, 2007 WL 4357761 *1 (9th Cir. 2007) ("the district court did not abuse its discretion by denying [a state prisoner's] motion to compel production of documents from non-parties under Fed. R. Civ. P. 34. . . ."). See also Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 111-12 (1969) (court is unable to issue orders against individuals who are not parties to a suit pending before it).
In addition, plaintiff cites no authority for his request to obtain general discovery in an effort to resuscitate claims long since dismissed. See Armstrong v. Runnels, 2008 WL 1701906 (E.D. Cal. April 10, 2008) ("While the court can make reasonable orders for opposing counsel to obtain and provide information that would assist in effecting service of process on a defendant whose identity is known, the court cannot direct opposing counsel to conduct a fishing expedition that may or may not reveal the correct name of a defendant. There simply is no basis in the law for the court to make such an order.")
Plaintiff's reliance on an out of circuit district court case is similarly unavailing. In Johnson v. Howard, 20 F.Supp.2d at 1129, the prisoner's claim had survived summary judgment and the prisoner was in need of witnesses and preparation for trial. Id. Here, service of process has not yet been accomplished, so the court is unable to determine the plaintiff's likelihood of success on the merits of his claims. Moreover, under Ninth Circuit authority, plaintiff must provide the name and address of the individual named as a defendant to the U.S. Marshal for service of process. Walker, 14 F.3d at 1422; Puett, 912 F.2d at 275; Furnace v. Knuckles, 2011 WL 3809770 at *2 (N.D. Cal. Aug. 29, 2011) ("It is plaintiff's responsibility to provide accurate addresses for defendants in order that they can be served by the United States Marshal."); Aguirre v. Monk, 2011 WL 2149087 at *14 (N.D. Cal. June 1, 2011) ("Although the court can and does have the U.S. Marshal serve process on defendants routinely in in forma pauperis cases, it is the plaintiff's responsibility to provide a name and address for each defendant to be served.").
Accordingly, plaintiff's motion to compel is denied.
For the reasons set forth in this court's September 10, 2012, plaintiff's alternative request for the appointment of counsel is denied.
V. Conclusion
Plaintiff was required to serve defendant Nunez within 120 days after the second amended complaint was filed on November 15, 2012. On June 25, 2013, the court issued its screening order. The U.S. Marshal was first directed to serve process on defendant Nunez on August 2, 2013. (ECF No. 48.) On two separate occasions, November 27, 2013, and February 13, 2014, plaintiff was granted ninety day extensions of time in which to serve defendant Nunez. It has now been over a year since the court issued its screening order, and plaintiff has not accomplished service of process on defendant Nunez, despite the court's efforts to assist him. In light of the foregoing, the court orders plaintiff to show cause, within thirty days, why this action should not be dismissed for failure to serve pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's motion (ECF No. 59) is denied; and
2. Plaintiff shall show cause, within thirty days, why this action should not be dismissed for failure to serve defendant Nunez pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. Dated: August 22, 2014
/s/_________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE