(PC) Smith v. Guitron

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSEPH JERMAINE SMITH, Case No. 1:25-cv-01222-JLT-BAM (PC) 12 Plaintiff, ORDER TO SHOW CAUSE WHY DEFENDANT STEVENSEN SHOULD NOT 13 v. BE DISMISSED FROM THIS ACTION FOR FAILURE TO PROVIDE SUFFICIENT 14 GUITRON, et al., INFORMATION TO EFFECTUATE SERVICE 15 Defendants. (ECF No. 22) 16 THIRTY (30) DAY DEADLINE 17 18 Plaintiff Joseph Jermaine Smith is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on 20 Plaintiff’s second amended complaint against Defendants Ali Guitron, Jorge Reyes-Mercado, R. 21 Rensen, S. Stevensen, and Y. Trejo for excessive force in violation of the Eighth Amendment. 22 On July 7, 2026, the Court issued an order directing service on Defendants Guitron, 23 Reyes-Mercado, R. Rensen, S. Stevensen, and Y. Trejo under the Court’s E-Service pilot program 24 for civil rights cases in the Eastern District of California. (ECF No. 18.) The order included the 25 following information regarding Defendant Stevensen: “S. Stevensen, Correctional Officer; 26 North Kern State Prison.” (Id. at 2.) On July 15, 2026, the Court received information that 27 Defendant Stevensen could not be identified. Service documents were forwarded to the United 28 States Marshals Service. On July 22, 2026, the United States Marshal filed a return of service 1 unexecuted as to Defendant S. Stevensen. (ECF No. 22.) 2 Federal Rule of Civil Procedure 4(m) provides as follows: 3 If a defendant is not served within 90 days after the complaint is filed, the court— 4 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 5 specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. 6 7 Fed. R. Civ. P. 4(m). 8 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the 9 court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “[A]n incarcerated pro 10 se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the 11 summons and complaint, and . . . should not be penalized by having his or her action dismissed 12 for failure to effect service where the U.S. Marshal or the court clerk has failed to perform the 13 duties required of each of them . . . .” Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). “So 14 long as the prisoner has furnished the information necessary to identify the defendant, the 15 marshal’s failure to effect service is ‘automatically good cause . . . .’” Walker v. Sumner, 14 F.3d 16 1415, 1422 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472, 115 17 (1995). However, where a pro se plaintiff fails to provide the Marshal with accurate and 18 sufficient information to effect service of the summons and complaint, the Court’s sua sponte 19 dismissal of the unserved defendant is appropriate. Walker, 14 F.3d at 1421–22. 20 Here, the U.S. Marshal attempted to electronically serve Defendant S. Stevensen with the 21 information that Plaintiff provided. However, the Court was informed that Defendant Stevensen 22 could not be identified. The U.S. Marshal then attempted personal service on Defendant S. 23 Stevensen, but also was informed that S. Stevensen could not be identified. (ECF No. 22.) 24 Plaintiff therefore has not provided sufficient information to locate Defendant S. Stevensen for 25 service of process. If Plaintiff is unable to provide the Marshal with the necessary information to 26 locate this defendant, then Defendant S. Stevensen shall be dismissed from this action, without 27 prejudice. 28 Pursuant to Rule 4(m), the Court will provide Plaintiff with the opportunity to show cause 1 why Defendant S. Stevensen should not be dismissed from the action at this time. Plaintiff may 2 respond to this order by providing additional information that will assist the Marshal in locating 3 this defendant for service of process. 4 Based on the foregoing, it is HEREBY ORDERED that: 5 1. Within thirty (30) days from the date of service of this order, Plaintiff shall show cause 6 why Defendant S. Stevensen should not be dismissed from this action; and 7 2. The failure to respond to this order or the failure to show cause will result in the 8 dismissal of any unidentified defendant from this action, due to Plaintiff’s failure to 9 serve process pursuant to Federal Rule of Civil Procedure 4(m). 10 IT IS SO ORDERED. 11 12 Dated: July 29, 2026 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28