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Sokolsky v. State

United States District Court, E.D. California

July 7, 2017

MARK S. SOKOLSKY, Plaintiff,
v.
STATE OF CALIFORNIA, et al., Defendants.

          ORDER FOR PLAINTIFF TO SHOW CAUSE WHY DEFENDANT REBECCA DOMRESE SHOULD NOT BE DISMISSED FROM THIS ACTION FOR FAILURE TO EFFECT SERVICE TWENTY-DAY DEADLINE

          GARY S. AUSTIN UNITED STATES MAGISTRATE JUDGE

         I. RELEVANT PROCEDURAL HISTORY

         Mark S. Sokolsky (“Plaintiff”) is a civil detainee proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on January 11, 2011. (ECF No. 1.) This case now proceeds with Plaintiff's Second Amended Complaint, filed on February 4, 2016, against defendants Rebecca Domrese, Audrey King, Daniel Meek, Jeannie Porter, and Isaac Bonsu (“Defendants”) for denial of free exercise of religion under the First Amendment and violation of RLUIPA; and defendants Domrese, King, Porter, and Bonsu for violation of due process based on conditions of confinement. (ECF No. 30.)

         On December 23, 2016, Plaintiff filed a motion for summary judgment. (ECF No. 61.) On March 30, 2017, defendants Meek, Bonsu, King, Coyne, [1] and Porter filed a motion for summary judgment or partial summary judgment. (ECF No. 68.) These two motions are pending.

         On June 29, 2017, the court received notice from the United States Marshal (“Marshal”) that the Marshal was unable to locate defendant Rebecca Domrese for service of process. The Marshal reported that Rebecca Domrese is no longer a state employee and they have no forwarding information.

         II. SERVICE BY UNITED STATES MARSHAL

Pursuant to Rule 4(m),
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).

         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)), 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 (quoting Sellers v. United States, 902 F.2d 598, 603 (7th 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.

         Background

         On September 17, 2015, the court issued an order directing the Marshal to initiate service of process upon defendant Rebecca Domrese in this action. (ECF No. 20.) On June 29, 2017, the court received notice from the Marshal that the Marshal was unable to locate defendant Rebecca Domrese for service of process using the address provided by Plaintiff. The Marshal also reported that Rebecca Domrese is no longer a state employee and they have no forwarding information.

         Pursuant to Rule 4(m), the court will provide Plaintiff with an opportunity to show cause why defendant Rebecca Domrese should not be dismissed from the action at this time for inability to serve process. Plaintiff has not provided sufficient information to locate defendant Rebecca Domrese for service of process. The Marshal has attempted to locate this defendant at the address provided by Plaintiff, without success. If Plaintiff is unable to provide the Marshal with additional information, defendant Rebecca Domrese shall be dismissed from the action.

         III. ...


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