Opinion
1:22-cv-00726 SKO (PC)
10-20-2023
JOHN LOUIS SPEARS, Plaintiff, v. FRANK CHANG, Defendant.
ORDER DISCHARGING ORDER TO SHOW CAUSE
(Doc. 19)
ORDER DIRECTING PLAINTIFF TO PROVIDE SUFFICIENT INFORMATION TO EFFECTUATE SERVICE UPON DEFENDANT CHANG WITHIN 30 DAYS
SHEILA K. OBERTO UNITED STATES MAGISTRATE JUDGE
Plaintiff John Louis Spears is proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. This action proceeds solely on Plaintiff's Eighth Amendment deliberate indifference to serious medical needs claim against Defendant Chang.
I. RELEVANT BACKGROUND
The Court issued its Order Finding Service Appropriate on April 18, 2023, directing service of process on Defendant Frank Chang, M.D., at the Substance Abuse Treatment Facility (“SATF”) in Corcoran, California. (Doc. 14.)
On May 30, 2023, the California Department of Corrections and Rehabilitation (“CDCR”) filed a notice of intent to waive service as to Defendant Chang. (Doc. 16.) However, on June 5, 2023, the CDCR filed an amended notice, advising the Court they attempted contact with Chang at SATF, but failed to contact him. (Doc. 17.) A last known address was provided. (Id.)
On September 15, 2023, the United States Marshall filed its USM-285 form indicating service could not be effected on Defendant Chang. (Doc. 18 at 1.) The United States Marshal was advised by the current resident of 161 W. Fairview Avenue in San Gabriel, California, that Chang has not resided at that address “as of March 2021.” (Id. at 2.)
On September 18, 2023, the Court issued its Order to Show Cause (“OSC”) Why Defendant Chang Should Not Be Dismissed from this Action for Plaintiff's Failure to Provide Sufficient Information to Effectuate Service. (Doc. 19.)
On October 19, 2023, Plaintiff filed a response to the OSC. (Doc. 20.)
II. DISCUSSION
In his response to the OSC, Plaintiff contends he has “provided the Court and U.S. Marshals information and location where defendant, Frank Chang, could [] be located for effective service.” (Doc. 20 at 2.) He states because he is incarcerated, pro se and proceeding in forma pauperis, he “has no other option but to rely upon the U.S. Marshal for service of summons and complaint.” (Id.) Plaintiff contends that due to his incarceration, he “has no access to the internet or social media to assist the U.S. Marshall and the Court to locate the defendant so that service can be completed.” (Id.) Plaintiff states Defendant Chang, as a doctor, “has a medical license and license number that the U.S. Marshal's and Court can trace and find the defendant's current address and place of employment.” (Id. at 2-3.) Plaintiff states Defendant Chang should have a driver's license, “which if ran through the Department of Motor Vehicle(DMV) data base the defendant's current address would be provided and the U.S. Marshal could effectuate service.” (Id. at 3.) Plaintiff contends Defendant Chang should not be dismissed from the action because Plaintiff “has provided the Court and the U.S. Marshal's all of the information he had regarding” Defendant's location. (Id.) Plaintiff asserts “Defendant either is currently or was an employee of Department of Corrections and Rehabilitation(CDCR), at the Substance Abuse Treatment Facility @ Corcoran, in California,” and that “CDCR should have and/or keep the home number or cellphone number of [their] employees in cases such as this.” (Id.)
As the Court previously stated, if a pro se plaintiff fails to provide the Marshal with accurate and sufficient information to effect service of the summons and complaint, dismissal of the unserved defendant is appropriate. Fed.R.Civ.P. 4(m); Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). Here, the United States Marshal has attempted to serve Defendant Frank Chang without success. (Doc. 19.) Plaintiff identified Defendant Chang as a physician employed at SATF on February 2, 2017. (See Doc. 1 & Doc. 14 at 1.) The United States Marshal was advised by the CDCR that Chang could not be located at SATF. (Doc. 17.) CDCR provided a last known address for Chang: 161 W. Fairview Avenue, in San Gabriel, California. (Id.) The United States Marshal then attempted personal service at Defendant Chang's last known address. (Doc. 18.) Those efforts were unsuccessful because the Marshal was advised by the current occupant of the residence that Chang has not resided at that address for more than two years. (Id.) In sum, Plaintiff has failed to provide the Marshal with accurate and sufficient information to effect service of the summons and Plaintiff's complaint on Defendant Chang. Walker, 14 F.3d at 1421-22.
Plaintiff is entitled to assistance in effecting service due to his status as an incarcerated pro se plaintiff proceeding in forma pauperis. Fed.R.Civ.P. 4(c)(3). It is Plaintiffs burden, however, to obtain sufficient information regarding defendants' identities and current addresses to effect service of process. Puett v. Blandford, 92 F.2d 270, 275 (9th Cir. 1990) (in forma pauperis litigant is entitled to have process served by U.S. Marshal if litigant provides necessary information to help effectuate service). The United States Marshal has assisted Plaintiff; however, based upon the information provided by Plaintiff service could not be completed.
It is not the Marshal's responsibility to locate Defendant Chang. See Howardv. Encinas, No. 1:18-cv-01710-DAD-EPG (PC), 2020 WL 2489634, *2 (E.D. Cal. May 14, 2020) (“As Plaintiff has failed to provide the Marshal with accurate and sufficient information to effect service of summons and complaint on defendant Leno and W. Hanna,” where the institution of confinement at the time of the incident reported neither “Leno” nor “W. Hanna” was employed at that institution, the Court recommended dismissal of those defendants) (recommendation adopted July 10, 2020, 2020 WL 3893633); Heredia v. Lawrence, No. 17cv1560-LAB (LL), 2019 WL 1330316, at *2 (S.D. Cal. Mar. 25, 2019) (plaintiff suggested burden of locating defendants should “be on the USMS or the Court” but it is plaintiff's responsibility to provide the necessary information and the “USMS does its best to effect service as instructed, but it does not have the ability to track down every defendant named in a complaint if the information provided by the plaintiff is faulty”). Nor does that burden fall on or extend to the Court. See Heredia, 2019 WL 1330316, at *2; Harbridge v. Hall, Lee, and Tucker, No. 1:10-cv-00473-DAD-JLT (PC), 2017 WL 1821282, at *5 (E.D. Cal. May 5, 2017) (“Plaintiff argues that the Ninth Circuit should ‘clearly carve out ... a new rule' requiring district courts to order the U.S. Marshal to access the internet and public records to locate defendants who no longer work for the CDCR for purposes of service. Plaintiff has failed to come forward with any legal precedent for imposing such requirements on the U.S. Marshal and the court has found none. In addition, given the number of incarcerated plaintiffs who proceed pro se in this district, the court declines to impose such an overwhelming and additional burden on the U.S. Marshal”).
Further, the CDCR has already provided the last known address associated with Defendant Chang, and it is not CDCR's obligation to provide more. See Lear v. Navarro, No. 1:21-cv-00600-DAD-BAM (PC), 2022 WL 2819034, at *2 (E.D. Cal. July 19, 2022) (“as the Marshal has already attempted to serve Defendant Plata with the information that was provided, the Court finds that Plaintiff has not provided sufficient information to identify and locate Defendant Plata for service of process. To the extent Plaintiff requests that the Court order [CDCR] Defendants or defense counsel to provide such information directly to the Court, by order or by email, the Court declines to do so”); Stewardv. Igbinosa, No. 1:18-cv-00551-AWI-BAM (PC), 2021 WL 3488282, at *2 (E.D. Cal. Aug. 9, 2021) (it is not CDCR's responsibility to provide the Court with updated contact information for the defendant; because plaintiff had “no other information that can be used to locate Defendant Nelson, and as the Marshal has already attempted to serve Defendant Nelson with the information provided, the Court finds that Plaintiff has not provided sufficient information to identify and locate Defendant Nelson for service of process”).
The Court will not order the United States Marshal or the CDCR to do more. Both entities have attempted service based on the information that is Plaintiff's burden to provide. While the Court understands Plaintiff is incarcerated and has limited access to information, that limitation does not shift the burden to the United States Marshal, CDCR, or this Court.
Plaintiff will be provided one final opportunity to provide additional information that will assist the United States Marshal in locating Defendant Chang for service of process. If Plaintiff is unable to provide the United States Marshal with the necessary information to locate Defendant Chang, he will be dismissed from this action, without prejudice, pursuant to Rule 4 of the Federal Rules of Civil Procedure.
III. CONCLUSION AND ORDER
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff SHALL provide the Court with additional information concerning Defendant Chang's current location within 30 days of the date of service of this order.
Plaintiff is advised that a failure to provide sufficient information will result in a recommendation that Defendant Chang be dismissed, without prejudice, from this action due to Plaintiff's failure to serve process pursuant to Federal Rule of Civil Procedure 4(m).
IT IS SO ORDERED.