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Shepard v. Cohen

United States District Court, E.D. California

June 15, 2017

LAMONT SHEPARD, Plaintiff,
v.
DR. COHEN, Defendant.

          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

         I. RELEVANT PROCEDURAL HISTORY

         Lamont 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[1] found cognizable claims in the Second Amended Complaint, and ordered it served on defendants Dr. Cohen and Vera-Brown. (ECF No. 48).

         Defendants 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 No. 85).

         As to 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).

         On 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.).

         On 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).

         On 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.).

         Accordingly, 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).

         On June 14, 2017, the summons was once again returned unexecuted. (ECF No. 132).

         II. SERVICE BY UNITED STATES MARSHAL

         Pursuant 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.

         Fed. R. Civ. P. 4(m).[2]

         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)(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 ...


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