United States District Court, E.D. California
MONICO J. QUIROGA, Plaintiff,
C. CHAPA, Defendant.
ORDER DENYING PLAINTIFF'S MOTION TO COMPEL,
DISMISSING ACTION, WITHOUT PREJUDICE, PURSUANT TO FEDERAL
RULE OF CIVIL PROCEDURE 4(m), AND DENYING MOTION FOR FEDERAL
OVERSIGHT AS MOOT [ECF Nos. 36, 37, 41]
is a state prisoner proceeding pro se in this civil rights
action pursuant to 42 U.S.C. § 1983. Pursuant to 28
U.S.C. § 636(c), Plaintiff consented to the jurisdiction
of the United States Magistrate Judge on February 16, 2016.
Local Rule 302.
Court found that Plaintiff's complaint stated a
cognizable claim against Defendant C. Chapa for sexual
assault in violation of the Fourteenth Amendment.
23, 2016, the Court ordered the United States Marshal to
service the summons and complaint on Defendant Chapa. (ECF
NO. 19.) However, the Marshal was not able to locate
Defendant Chapa and service was returned un-executed on
October 6, 2016. It was noted that C. Chapa was no longer
employed by Kern County. (ECF No. 21.)
December 12, 2016, the Court issued a second order directing
the United States Marshal to serve Defendant C. Chapa and to
review personnel and/or county/state records to ascertain
Chapa's current address of record. (ECF No. 31.)
4(m) of the Federal Rules of Civil Procedure provides:
If a defendant is not served within 90 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.
cases involving a plaintiff proceeding in forma pauperis, the
Marshal, upon order of the Court, shall serve the summons and
the complaint. 28 U.S.C. § 1915(d); Fed.R.Civ.P.
4(c)(3). “[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 [he] 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) (internal
quotations and citation omitted), 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 (internal quotations and
citation omitted). 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 v. Blandford, 912 F.2d 270, 275 (9th
Cir. 1990). 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.
April 11, 2017, the summons was returned unexecuted. (ECF No.
36.) On the form, the Marshal notes that the address provided
was for sale and appeared vacant. Contact was made with the
agent selling the house who stated the house has been vacant
since January and he/she did not recognize the
Defendant's name. (Id.) In light of the
Marshal's inability to serve Defendant Chapa, the Court
issued a second order to show cause why the action should not
be dismissed, without prejudice, on April 12, 2017. (ECF No.
37.) On April 28, 2017, Plaintiff filed a response to the
order to the show cause, along with a motion to compel
discovery and motion for federal oversight. (ECF Nos. 40, 41,
response to the order to show cause, Plaintiff contends that
he is entitled to rely on the U.S. Marshal for service of the
summons and complaint and he should not be penalized by
dismissal of the action for failure to effectuate service.
(ECF No. 41.) In his motion to compel, Plaintiff simply seeks
the last known address for Defendant Chapa for service by the
United States Marshal. (ECF No. 40.) However, as Plaintiff
was previously advised, the United States Marshal has already
been provided with the last known address of Defendant Chapa
and attempted personal service at such address to no avail.
(ECF No. 36.) Thus, there is no basis to compel further
discovery of information that has already been ascertained
and exhausted by the United States Marshal, and Plaintiff has
failed to demonstrate good cause for failure to serve
Defendant Chapa. Accordingly, Plaintiffs motion to compel
further discovery is denied, and the instant action must be
dismissed, without prejudice, pursuant to Federal Rule of
Civil Procedure 4(m).
on the foregoing, it is HEREBY ORDERED that:
1. Plaintiffs motion to compel, filed April 28, 2017, is
2. The instant action is dismissed, without prejudice,
pursuant to Federal Rule of Civil Procedure 4(m);
3. Plaintiff s motion for federal oversight, filed April 28,
2017, is ...