The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER FOR PLAINTIFF TO SHOW CAUSE WHY DEFENDANT VASQUEZ SHOULD NOT BE DISMISSED FOR FAILURE TO PROVIDE INFORMATION SUFFICIENT TO EFFECT SERVICE THIRTY DAY DEADLINE
Kelvin X. Singleton ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on January 18, 2008. (Doc. 1.) This case now proceeds on the Second Amended Complaint, filed by Plaintiff on February 12, 2009, against defendants CMO A. Youssef, CMO S. Lopez, Dr. J. Akanno, Dr. S. Qamar, Dr. Vasquez, RN II M. Ali, and RN II M. Wright-Pearson for deliberate indifference to Plaintiff's serious medical needs in violation of the Eighth Amendment. (Doc. 26.)
II. SERVICE BY UNITED STATES MARSHAL
On November 2, 2009, the Court issued an order directing the United States Marshal to initiate service of process upon defendants in this action. (Doc. 36.) All of the defendants were successfully served except Dr. S. Qamar, Dr. Vasquez, and RN II M. Wright-Pearson.
Defendants Qamar and Wright-Pearson
On April 19, 2010, the Marshal filed returns of service unexecuted as to defendants Dr. S. Qamar and Senior R.N. II M. Wright-Pearson. (Doc. 56.) Based on the information set forth in the returned USM-285 forms, the Court cannot make a finding that Plaintiff has not provided sufficient information to locate these two defendants. Therefore, by separate order, the Marshal shall be directed to initiate re-service upon defendants Qamar and Wright-Pearson by contacting the Legal Affairs Division of the California Department of Corrections and Rehabilitation for assistance.
On April 19, 2010, the Marshal filed a return of service unexecuted as to defendant Dr. Vasquez. (Doc. 56.)
[i]f service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.
In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the Court, shall serve the summons and the complaint. Fed.R.Civ.P. 4(c)(2). "'[A]n incarcerated prose 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 v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990)), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). "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)). However, where a ...