The opinion
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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
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11 KEVIN LEWIS, JR., Case No. 1:22-cv-00628-NODJ-CDB (PC)
12 Plaintiff, ORDER DISCHARGING ORDER TO
SHOW CAUSE (Doc. 37)
13 v.
FINDINGS AND RECOMMENDATIONS
14 ALAN QUINTO, et al., TO DISMISS DEFENDANT
HERNANDEZ FROM THIS ACTION
15 Defendant. FOR PLAINTIFF’S FAILURE TO
EFFECT SERVICE OF PROCESS
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14-DAY OBJECTION DEADLINE
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18 Plaintiff Kevin Lewis, Jr., is a state prisoner proceeding pro se and in forma pauperis in
19 this civil rights action filed under 42 U.S.C. § 1983. This action proceeds on an Eighth
20 Amendment claim for use of excessive force against Defendants Alan Quinto, Bobby Gilbert,
21 Shannon Brown, and John Hernandez, Correctional Officers (“COs”) at North Kern State Prison;
22 and a claim for failure to protect against COs Brown and Hernandez. (Doc. 20.)
23 On October 27, 2023, the Court issued its Order Finding Service Appropriate. (Doc. 21.)
24 Specifically, service was to be effected on Defendants Quinto, Gilbert, Brown, and Hernandez.
25 (Id. at 2.)
26 On December 12, 2023, and again on January 8, 2024, the California Department of
27 Corrections and Rehabilitation (“CDCR”) advised the Court service would not be waived as to
1 CDCR was unable to provide a last known address or any other information concerning this
2 individual.
3 On January 16, 2024, the Court entered an order to show cause (OSC) requiring Plaintiff
4 to show cause, within 30 days, why Defendant Hernandez should not be dismissed from the
5 action, or to provide additional information to assist the United States Marshal in locating
6 Defendant Hernandez for service of process. (Doc. 37 at 3-4.) Plaintiff was cautioned that a
7 failure to respond to the OSC would result in dismissal pursuant to Federal Rule of Civil
8 Procedure 4(m). (Id. at 4.)
9 More than 30 days have passed, and Plaintiff has failed to respond to the OSC or to
10 provide additional information to assist the United States Marshal in effecting service of process
11 on Defendant Hernandez.
12 Federal Rule of Civil Procedure 4(m) provides as follows:
13 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
14 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
15 must extend the time for service for an appropriate period.
16 Fed. R. Civ. P. 4(m). Absent a showing of good cause, courts have discretion under Rule 4(m) to
17 extend the time for service or to dismiss the action without prejudice. In re Sheehan, 253 F.3d
18 507, 513 (9th Cir. 2001). A prisoner plaintiff is required to provide sufficient information to
19 effectuate service of process on a defendant by the United States Marshal. Walker v. Sumner, 14
20 F.3d 1415, 1421-22 (9th Cir. 1994), abrogated in part on other grounds in Sandin v. Connor, 515
21 U.S. 472 (1995).
22 Service of Plaintiff’s complaint was authorized on October 23, 2023 (Doc. 21) and
23 summonses were issued that same day. (Doc. 22.) All Defendants besides Defendant Hernandez
24 have filed an answer to Plaintiff’s complaint. (Doc. 40.). On December 12, 2023, and again on
25 January 8, 2024, CDCR advised the Court service would not be waived as to Defendant
26 Hernandez, indicating it was unable to identify a “John Hernandez.” (Docs. 28, 32.) CDCR was
27 unable to provide a last known address or any other information concerning this individual.
1 | provide additional information concerning Defendant Hernandez to allow for service of process
2 | by the United States Marshal. It follows that, by his failure to comply with the Court’s OSC,
3 | Plaintiff has failed to show good cause concerning his failure to provide the United States
4 | Marshal with sufficient information to effect service of process on Defendant Hernandez. Walker,
5 | □□ F.3d at 1421-22.
6 CONCLUSION, ORDER AND RECOMMENDATION
7 Accordingly, IT IS HEREBY ORDERED that the OSC issued January 16, 2024 (Doc. 37)
8 | is DISCHARGED.
9 Further, for the reasons stated above, IT IS HEREBY RECOMMENDED that Defendant
10 | John Hernandez be DISMISSED, without prejudice, from this action for Plaintiff's failure to
11 | effectuate service of process.
12 These Findings and Recommendations will be submitted to the district judge assigned to
13 | this case, pursuant to 28 U.S.C. § 636(b)(1). Within 14 days of the date of service of these
14 | Findings and Recommendations, a party may file written objections with the Court. The
15 | document should be captioned, “Objections to Magistrate Judge’s Findings and
16 | Recommendations.” Failure to file objections within the specified time may result in waiver of
17 || rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v.
18 | Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
19 | IT IS SO ORDERED.
Dated: _ February 29, 2024 | br Pr
21 UNITED STATES MAGISTRATE JUDGE
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