Guerrero v. Moore

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 Carlos GUERRERO, Case No.: 20-cv-01315-GPC-BGS 12 Plaintiff, ORDER GRANTING PLAINTIFF’S 13 v. MOTION [14] [ECF No. 9] 15 T. MOORE, 16 Defendant. [17] 18 Plaintiff Carlos Guerrero, a state prisoner proceeding pro se and in forma pauperis, 19 filed this action under 42 U.S.C. § 1983 on July 10, 2020. (ECF No. 1.) On September 2, 20 2020, the Court issued an order granting Plaintiff’s motion to proceed in forma pauperis 21 (“IFP”) and directing the U.S. Marshal (“USMS”) to effect service on the Defendant T. 22 Moore. (ECF No. 5.) The summons for Defendant T. Moore was returned unexecuted on 23 December 14, 2020. (ECF No. 7.) On June 25, 2021, nunc pro tunc to June 21, 2021, 24 Plaintiff filed a motion wherein he indicated that he was unable to serve Defendant T. 25 Moore because he no longer works at R.J. Donovan Prison (“RJD”). (ECF No. 9.) Plaintiff 26 stated that “[u]nless there’s other alternatives that [the] court might have in order to proceed 27 under these type of circumstances[,] I would like to have the option for [the USMS] to 28 serve [the] Prison Litigation Office in regards of Officer Moore.” (Id.) 1 “[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely 2 on the U.S. Marshal for service of the summons and complaint, and, having provided the 3 necessary information to help effectuate service, plaintiff should not be penalized by 4 having his or her action dismissed for failure to effect service[.]” Puett v. Blandford, 912 5 F.2d 270, 275 (9th Cir. 1990). So long as the prisoner has furnished the information 6 necessary to identify the defendant, the USMS’s inability to effect service of process is 7 automatically good cause within the meaning of Federal Rule of Civil Procedure 4(m).1 8 See Walton v. Violi, 100 F.3d 966 (9th Cir. 1996) (citing Walker v. Sumner, 14 F.3d 1415 , 9 1422 (9th Cir. 1994)). 10 Here, Plaintiff sufficiently identified Defendant T. Moore as an employee of RJD 11 and the California Department of Corrections and rehabilitation (“CDCR”) during the time 12 of the incident. The summons was returned unexecuted, stating that Defendant T. Moore 13 was no longer employed at RJD. (ECF. No. 7.) Under these circumstances, as long as the 14 privacy of the Defendant’s forwarding address can be preserved and the forwarding address 15 can easily be ascertained by reference to the CDCR’s personnel records, Plaintiff is entitled 16 to rely on the USMS to effect service upon the Defendant on his behalf. See Puett, 912 17 F.2d at 275; Morris v. Barr, No. 10-cv-2642-AJB-BGS, 2011 WL 3859711 , at *1–*2 (S.D. 18 Cal. Aug. 2011); Jensen v. Knowles, 621 F. Supp. 2d 921 , 929–30 (E.D. Cal. 2008); 19 Dodson v. Rocha, No. 07cv0869–W-RBB, 2008 WL 251947 , at *1 (S.D. Cal. Jan. 2008) 20 (“As long as Defendant[’s] . . . forwarding address can be easily ascertained by reference 21 to the [CDCR’s] personnel records, Plaintiff is entitled to rely on the [USMS] to effect 22 service on him.”). [25] 26 1 Rule 4(m) provides that “[i]f 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 27 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. [28] 1 Accordingly, the Court GRANTS Plaintiff's motion (ECF No. 9) and hereby directs 2 ||the USMS to contact either the Litigation Coordinator at RJD or the CDCR’s Legal Affairs 3 || Division, if necessary, to obtain the current/forwarding address within the CDCR’s records 4 possession. Any address shall be forwarded on or before August 23, 2021 to the USMS 5 ||in a confidential memorandum. The USMS are ordered to keep strictly confidential any 6 || address provided for the Defendant. Thus, the Defendant’s address shall not appear on any 7 || USMS Form 285, shall not be provided to Plaintiff, and shall not be made part of the 8 || Court’s record. 9 Within 30 days of receipt of any available address for the Defendant, the Court 10 || orders the USMS to serve a copy of Plaintiff's complaint and summons upon Defendant T. 11 ||Moore. All costs of service shall be advanced by the United States pursuant to the Court’s 12 || Order granting Plaintiff leave to proceed JFP and directing service pursuant to 28 U.S.C. 13 1915(d) and Fed. R. Civ. P. 4(c)(3). (ECF No. 5.) 14 IT IS SO ORDERED. 15 Dated: August 2, 2021 p / / 16 on. Bernard G. Skomal 17 United States Magistrate Judge