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Li v. Contra Costa County

United States District Court, N.D. California

June 12, 2017

ANDY LI, Plaintiff,
v.
CONTRA COSTA COUNTY, Defendants.

          ORDER RE UNSERVED DEFENDANTS, DISCOVERY, AND SCHEDULING DOCKET NO. 15

          Edward M. Chen United States District Judge.

         Andy Li filed this pro se civil rights action under 42 U.S.C. § 1983, alleging claims about his medical care at the Martinez Detention Facility in Contra Costa County. This order addresses a service of process problem for three Defendants and Mr. Li's motion to compel discovery responses.

         A. The Claims In This Action

         In his complaint, Mr. Li alleges the following about his eye care while he was incarcerated at the Martinez Detention Center (“MDF”) in Contra Costa County: In November 2015, Mr. Li requested an optometry examination and complained of pains to nurses Herjinder Dhanoa and Joy Kick. Docket No. 1 at 3. Mr. Dhanoa and Ms. Kick said they would consult Dr. Dennis McBride, but no pain medications were provided. On April 27, 2016, Mr. Li filed a grievance, and nurse Felisa told him to use “'phone' triage sick call, ” which he did and asked for pain medications while he waited for his optometry appointment. Id. “No actions were taken by nurse Felisa.” Id. At the highest level of the grievance system, MDF medical health administrator Sam Rosales on May 3, 2016 informed Mr. Li that MDF medical staff would not give him any pain medications. “Contra Costa County condones an unofficial practice and policy of not providing pain medications when requested by [its] inmates.” Id. (Mr. Li had an optometry appointment on February 17, 2017, several months after he filed this action. See Docket No. 20 at 5.)

         The Court screened the complaint and found that, liberally construed, the complaint stated cognizable Eighth Amendment claims for deliberate indifference to Mr. Li's serious medical needs. Docket No. 5 at 2. A claim was stated against “the three nurses, a doctor and a health administrator” based on the allegations that they “have refused to provide medications to relieve the eye pain of which Mr. Li has complained and have failed to schedule an eye exam to deal with the alleged eye pain.” Id. A Monell claim was stated against Contra Costa County based on the allegations that the County “has a practice and policy of allowing jail medical providers not to provide pain medications for inmates, and that allegedly has led to Mr. Li's suffering.” Docket No. 5 at 2-3 (citing Monell v. Dep't of Social Servs., 436 U.S. 658 (1978)). The Court noted that Mr. Li's claims would arise under the Fourteenth Amendment's Due Process Clause rather than the Eighth Amendment's Cruel and Unusual Punishment Clause if he was a pretrial detainee rather than a convict at the relevant time. Id. at 2 n.1. The Court ordered service of process on six defendants. Id. at 3.

         B. The Unserved-Defendants Problem

         Three of the six Defendants have not been served with process or appeared in this action. Defendants Contra Costa County, Mr. Dhanoa, and Mr. Rosales were served and have appeared in this action. Defendants nurse Joy Kick, nurse Felisa, and Dr. Dennis McBride have not been served with process or appeared in this action.

         On October 17, 2016, the Marshal returned the “Process Receipt and Return” forms for nurse Kick, nurse Felisa, and Dr. McBride, informing the Court that the Marshal had been unable to locate those defendants, as to whom he had attempted service at the Martinez Detention Facility. Docket No. 9. The Marshal made a notation that nurse Kick was “no longer employed at the facility, ” but provided no details as to why nurse Felisa and Dr. McBride were not served. Docket No. 9 at 1.

         The Court sought clarification about the unserved Defendants in a December 6, 2016 order extending deadlines: “Service of process was ordered on six Defendants, but only three of those Defendants have moved for an extension of the deadlines. In order to avoid the potentially unnecessary effort to make further efforts to serve process on the other Defendants, no later than December 16, 2016, defense counsel must file a notice indicating whether he will be representing the three Defendants who have not yet appeared in this action.” Docket No. 13 (emphasis deleted).

         Counsel representing the three Defendants who had been served filed a response, stating that he did not yet represent any of the unserved Defendants. Defense counsel explained that the unserved Defendants were no longer employed by Contra Costa County, they “must request representation and Contra Costa County Risk Management has to accept the request” before defense counsel could represent those Defendants. Docket No. 14 at 1. Defense counsel was unaware of a request for representation by the unserved Defendants, or that Contra Costa County Risk Management had agreed to accept their defense. Id. at 1-2. Additionally, defense counsel represented that he had not been authorized to accept service on behalf of the unserved Defendants. Id. at 2.

         “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.” Fed.R.Civ.P. 4(m). Where a prisoner is proceeding in forma pauperis and must rely on the Marshal for service of process, “[s]o long as the prisoner has furnished the information necessary to identify the defendant, the marshal's failure to effect service 'is automatically good cause' for not effectuating timely service.'” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994), overruled on other grounds by Sandin v. Conner, 515 U.S. 472 (1995); see e.g., Id. (district court did not err in dismissing defendant where plaintiff “did not prove that he provided the marshal with sufficient information to serve” this particular defendant or that he requested service).

         Service of process has not occurred within ninety days of the date the court ordered service of process on the three unserved Defendants. Although it is the Marshal's duty to serve process when a prisoner-plaintiff is proceeding as a pauper, the Marshal's ability to do so depends on a plaintiff providing sufficient information about a defendant for the Marshal to find the defendant to serve him or her. It appears that Mr. Li has not done so here, because the Marshal has been unable to serve process at the only address mentioned in Mr. Li's complaint and using the names he provided in his complaint.

         Accordingly, no later than July 21, 2017, Mr. Li must provide information (a) further identifying nurse Felisa, whose last name he did not provide, and (b) providing an address at which each of the three unserved Defendants may be served with process. There are many ways Mr. Li might attempt to learn this information. For example, he could do an internet search (which should be easy, as he is no longer in custody), submit a discovery request to the Defendants who already have been served in this action, subpoena personnel records from the jail, contact the Contra Costa County personnel department, or contact the licensing agencies for doctors and nurses. It is Mr. Li's obligation, not the Court's, to gather this information. In the alternative to providing the information, Mr. Li must show cause by that same deadline why he has not provided the information needed to locate the unserved Defendants and serve process on them. If Mr. Li fails to provide sufficient information to enable service of process to be accomplished on the unserved Defendants, the unserved Defendants will be dismissed without prejudice unless Mr. Li shows cause for his failure to provide the information.

         C. Plaintiffs Motion To Compel ...


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