United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT
DEFENDANT DR. COHEN BE DISMISSED FROM THIS ACTION, WITHOUT
PREJUDICE, AND THAT THE CASE BE CLOSED (ECF NOS. 128 &
132) TWENTY-ONE DAY DEADLINE
RELEVANT PROCEDURAL HISTORY
Shepard (“Plaintiff”) is a state prisoner
proceeding pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
This case is currently proceeding on Plaintiff's Second
Amended Complaint. (ECF No. 41). The Court found cognizable
claims in the Second Amended Complaint, and ordered it served
on defendants Dr. Cohen and Vera-Brown. (ECF No. 48).
Sgt. J. Lopez, Correctional Officer (“C/O”) Z.
Dean, and C/O J. Campbell were previously served, and the
case against them has now been resolved. (ECF No. 117). A
settlement conference was held as to the claims against
defendants Sgt. J. Lopez, C/O Z. Dean, and C/O J. Campbell on
May 20, 2016. (ECF No. 97). The case did not settle.
(Id.). Because the claims against defendants Sgt. J.
Lopez, C/O Z. Dean, and C/O J. Campbell were not settled, a
trial was held on August 2, 2016. (ECF No. 115). At the
trial, the Court allowed the parties to engage in settlement
negotiations, and the case settled. (Id.). As to the
claims against defendant Vera-Brown, summary judgment was
entered in her favor on all of the claims against her. (ECF
defendant Dr. Cohen, on May 26, 2015, the summons was
returned unexecuted because the United States Marshal Service
(“the Marshal”) was unable to locate defendant
Dr. Cohen. (ECF No. 78). Accordingly, the Court issued an
order for Plaintiff to show cause why defendant Dr. Cohen
should not be dismissed from the case. (ECF No. 80).
Plaintiff filed a response, stating that he did not know
defendant Dr. Cohen's address, but that the California
Department of Corrections and Rehabilitation
(“CDCR”) should have that information. (ECF No.
82). The Court then ordered the Marshal to initiate
re-service by contacting the Legal Affairs Division of the
CDCR for assistance in locating and effecting service on
defendant Dr. Cohen. (ECF No. 83).
December 3, 2015, the summons was once again returned
unexecuted. (ECF No. 88). According to the Marshal, it
contacted the CDCR Special Investigator for the CDCR Legal
Division, but the address given to the Marshal was not valid
and the CDCR did not have another address. (Id.).
December 21, 2015, District Judge Dale A. Drozd dismissed
defendant Dr. Cohen from the case without prejudice. (ECF No.
90). On August 8, 2016, Plaintiff asked for leave to effect
service on several parties. (ECF No. 116). The Court granted
the motion as to defendant Dr. Cohen. (ECF No. 118).
Plaintiff submitted the service documents (ECF No. 120), and
the Marshal was once again directed to serve defendant Dr.
Cohen (ECF No. 121).
January 26, 2017, the summons was returned unexecuted. (ECF
No. 124). The Marshal stated that the waiver of service was
returned to sender, and that the return enveloped stated that
defendant Dr. Cohen was deceased. (Id.).
the Court issued another order to show cause, directing
Plaintiff to show cause why defendant Dr. Cohen should not be
dismissed from the action without prejudice because of
Plaintiff's failure to provide the Marshal with accurate
and sufficient information to effect service of the summons
and complaint on defendant Dr. Cohen. (ECF No. 125).
Plaintiff filed a response that provided an address for
defendant Dr. Cohen. (ECF No. 126). Because Plaintiff
provided a potential service address, the Court discharged
the order to show cause (ECF No. 128), and once Plaintiff
provided the appropriate service documents (ECF No. 129),
ordered the Marshal to serve defendant Dr. Cohen (ECF No.
130). The Court also told Plaintiff that it was giving him
“one more opportunity to have
defendant Dr. Cohen served, ” and that if service of
process failed again, the Court would issue findings and
recommendations recommending that defendant Dr. Cohen be
dismissed from this case without prejudice and that the case
be closed. (ECF No. 128).
14, 2017, the summons was once again returned unexecuted.
(ECF No. 132).
SERVICE BY UNITED STATES MARSHAL
to Federal Rule of Civil Procedure 4(m),
If a defendant is not served within 90 days after the
complaint is filed, the court B on motion or on its own after
notice to the plaintiff B 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.
Civ. P. 4(m).
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)(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 ... 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) (alterations in original)), overruled on othergrounds 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