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Harbridge v. Hall

United States District Court, E.D. California

May 4, 2017

HALL, LEE, AND TUCKER, defendants.


         Plaintiff is a prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. §1983. Trial in this action commenced on May 2, 2017 on plaintiff's only remaining claim in this action, Claim 17 as alleged in his Second Amended Complaint against defendants Hall, Lee and Tucker for deliberate indifference to plaintiff's serious medical needs.

         On March 2, 2017, plaintiff filed a motion seeking an order directing the United States Marshal to re-attempt service on Dr. Benyamin, Dr. Ferro, and Dishman who were previously dismissed as defendants from this action by the court. (Doc. No. 147.) In the event service upon these defendants is not ordered, plaintiff alternatively requests that judgment be entered in their favor so that he may immediately seek appellate review. (Id.) Defendants filed an opposition to the motion (Doc. No. 152) to which plaintiff replied (Doc. No. 162.) The motion was thereafter deemed submitted for decision. L.R. 230(l).


         Findings and recommendations issued on November 27, 2012, finding plaintiff's allegations in the Second Amended Complaint (Doc. No. 22) against Dr. Benyamin, Dr. Ferro, and Nurse Dishman in Claims 18, 19, & 21 to state cognizable claims. (Doc. No. 28.) A number of plaintiff's other claims against other defendants, were also found to be cognizable. (Id.) Those findings and recommendations were adopted and service on the defendants against whom cognizable claims had been alleged was ordered in March of 2013. (Docs. No. 30, 33.) Thereafter, a few executed waivers of service were filed as well as an answer on behalf of a number of defendants. (See Doc. No. 35, Def. Tucker; Doc. No. 39, Def. Reeves; Doc. No. 42, Answer by Brown, Franco, Hall, Herrera, Lee, McBride, Redding, Reeves, Singleton, Trimble, Tucker.)

         In May of 2014, unexecuted summonses were filed by the U.S. Marshal as to defendants Dr. Benyamin, Dr. Ferro, and Nurse Dishman.[1] (Docs. No. 74, 76.) Plaintiff was ordered by the court to provide additional information to effectuate service on those defendants. (Doc. No. 80.) Plaintiff requested and received a three-month extension of time to provide the additional information, but failed to do so. (Docs. No. 86, 90.)

         On October 10, 2014, an order issued requiring plaintiff to show cause as to why the three defendants should not be dismissed pursuant to Rule 4(m). (Doc. No. 93.) Plaintiff filed a response in which he asserted that the U.S. Marshal's efforts to locate the three defendants by contacting the CDCR's Office of Legal Affairs and the State Attorney General were inadequate because, according to plaintiff, those state agencies were biased and could not be relied on to provide information in aid of service. Plaintiff requested that the U.S. Marshal be required to search the internet, Google, change of address information via the U.S. Postal Service, to conduct a public records search, and to perform any tasks necessary to locate those three defendants as they would to locate fugitives. (Doc. No. 94.)

         On April 22, 2015, findings and recommendations issued recommending that the three defendants to be dismissed, noting that plaintiff had not provided the U.S. Marshal with accurate and sufficient information to effect service, despite the fact that this action had then been pending for over five years. (Doc. No. 99.) Plaintiff did not file any objections to those findings and recommendations. The findings and recommendations were adopted in full and Dr. Benyamin, Dr. Ferro, and Nurse Dishman were dismissed without prejudice. (Doc. No. 108.)

         Plaintiff now belatedly seeks an order reinstating his Claims 18, 19, and 20 and directing the U.S. Marshal to serve Dr. Benyamin and Dr. Ferro at their addresses listed on defendant's Designation of Expert Witnesses, which he has attached as an exhibit to his motion, and for the U.S. Marshal to be ordered to conduct research as he previously requested to ascertain the location of and thereafter serve Nurse Dishman. (Doc. No. 147.) Plaintiff argues that defense counsel had the ability to provide the addresses for Dr. Benyamin, Dr. Ferro, and Nurse Dishman to the U.S. Marshal when service was initially attempted, but instead “concealed them.” (Id. at 2.)

         Defendants' opposition to plaintiff's motion indicates that the U.S. Marshal did not contact defense counsel personally in an attempt to locate Dr. Benyamin and Dr. Ferro. (Doc. No. 152.) Defendants oppose plaintiff's motion by arguing that plaintiff has not shown what efforts he made to provide the U.S. Marshal with accurate information in order to locate and serve Dr. Benyamin, Dr. Ferro, and Nurse Dishman. (Id.) Defendants point out that plaintiff did not inquire about the status of service on those three defendants until March of 2014 (Doc. No. 62), when he requested that the U.S. Marshal be ordered to locate them for service of process, and that despite receiving extension of the discovery deadline, plaintiff never propounded any discovery requests concerning the whereabouts of Dr. Benyamin, Dr. Ferro, or Nurse Dishman in order to assist in effectuating service on them. (Doc. No. 152.)


         I. Legal Standard

         Rule 4(m) of the Federal Rules of Civil Procedure requires dismissal without prejudice if a defendant is not timely served with process in an action.[2] Extension of the time for service is required if a plaintiff makes a showing of good cause to do so. Fed. R. Civ. Pro. 4(m), note 2015 Amendment, Subdivision (m). The deadline provision of Rule 4 “operates not as an outer limit subject to reduction, but as an irreducible allowance.” Henderson v. United States, 517 U.S. 654, 661 (1996). While “[d]istrict courts have broad discretion to extend time for service under Rule 4(m), ” “no court has ruled that the discretion is limitless.” Efaw v. Williams , 473 F.3d 1038, 1041 (9th Cir. 2007).

         Where, as here, the plaintiff proceeds in forma pauperis, the “officers of the court shall issue and serve all process.” 28 U.S.C.1915(d). The Court must appoint the Marshal to effect service, see Federal Rule of Civil Procedure 4(c)(2), and the Marshal, upon order of the Court, must serve the summons and the complaint, see Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir.1994) overruled on other grounds by Sandin v. Conner, 515 U.S. 472 (1995), (requiring a pro se prisoner plaintiff to have “furnished the information necessary to identify the defendant”) (internal citation omitted). Although a plaintiff who is incarcerated and proceeding in forma pauperis may rely on service by the Marshal, the plaintiff “may not remain silent and do nothing to effectuate such service;” rather, “[a]t a minimum, a plaintiff should request service upon the appropriate defendant and attempt to remedy any apparent defects of which [he] has knowledge.” Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir.1987). “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 within the meaning of Rule 4(j).'” Walker, 14 F.3d at 1422 (quoting Sellers v. United States, 902 F.2d 598, 603 (7th Cir.1990)).

         “In making extension decisions under Rule 4(m) a district court may consider factors ‘like a statute of limitations bar, prejudice to the defendant, actual notice of a lawsuit, and eventual service.'” Efaw , 473 F.3d at 1041 (quoting Troxell v. Fedders of N. Am., Inc., 160 F.3d 381, 383 (7th Cir.1998)). In Efaw, the Ninth Circuit found that dismissal should have been granted where the plaintiff failed to explain his seven year delay in serving the defendant and failed to present evidence that the defendant knew about the action notwithstanding plaintiff's failure to effect proper service, coupled with the obvious prejudice caused by the delay. Id.

         II. Discussion

         Here, plaintiff contends that because the U.S. Marshal contacted the Attorney General's Office when service was first attempted on Dr. Benyamin and Dr. Ferro, and the Deputy Attorney General representing the remaining defendants subsequently located both of the doctors and disclosed them as potential expert witnesses, the Attorney General's Office had the ability to provide addresses for Dr. Benyamin and Dr. Ferro to the U.S. Marshal, but instead “concealed them.” (Doc. No. 147 at 2.) Plaintiff argues that as a matter of law this is an evasion of service of process which was beyond his control and warrants the granting of his request for an order directing that ...

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