United States District Court, E.D. California
MARK S. SOKOLSKY, Plaintiff,
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
S. AUSTIN UNITED STATES MAGISTRATE JUDGE
RELEVANT PROCEDURAL HISTORY
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.
December 23, 2016, Plaintiff filed a motion for summary
judgment. (ECF No. 61.) On March 30, 2017, defendants Meek,
Bonsu, King, Coyne,  and Porter filed a motion for summary
judgment or partial summary judgment. (ECF No. 68.) These two
motions are pending.
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.
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).
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.
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.
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.