Smith v. Fu
- Beth Freeman
- 5:19-cv-02119-BLF
- U.S. District Court · Northern District of California
- 2
Smith v. Fu: Judge Freeman ordered Smith to provide location information for two defendants or face dismissal without prejudice for failure to serve them.
Jason Smith and his claims against Dr. Rachel Ross and Dr. Kowall; those claims remained pending but were at risk of dismissal without prejudice if Smith did not provide the requested service information.
What happened
In Smith v. Fu, Jason Smith, a state prisoner representing himself, sued personnel at the Correctional Training Facility under a federal civil-rights law. The court had found that his complaint stated a valid claim involving inadequate medical care, and Smith chose to proceed only on that claim.
The court said service documents for Dr. Rachel Ross and Dr. Kowall were returned without being served. It ordered Smith to provide information about their current whereabouts within 28 days so the federal marshal could serve them. If he does not provide the information, his claims against those two defendants will be dismissed without prejudice.
Judge Beth Labson Freeman issued an order directing Smith to provide the requested information. The order did not dismiss the claims at that time.
The detailed version
- Smith v. Fu · No. 5:19-cv-02119-BLF
- Beth Freeman
- Nov. 18, 2019
Background
Jason Smith, a state prisoner at the Correctional Training Facility in Soledad, filed this civil-rights case without a lawyer under 42 U.S.C. § 1983. After an initial review, the court found that his complaint stated a valid Eighth Amendment claim for deliberate indifference to serious medical needs. The court also gave him an opportunity to amend the complaint to try to state a First Amendment claim, but Smith notified the court that he wanted to proceed only on the Eighth Amendment claim.
Service problem
The clerk mailed notices of the lawsuit and requests to waive service to Dr. Law Fu, Dr. Rachel Ross, Dr. Kowall, M. Votaw, and S. Posson at the Correctional Training Facility. The documents sent to Dr. Fu, Dr. Kowall, and Dr. Ross were returned without completed service. The returned mail for Dr. Ross stated that she was no longer with the facility.
The court explained that an incarcerated plaintiff allowed to proceed without paying filing fees may rely on service by the federal marshal, but must still request service and try to correct known problems. Because the case had been pending for more than 90 days, Federal Rule of Civil Procedure 4(m) applied. That rule permits dismissal without prejudice for failure to serve a defendant when there is no showing of good cause.
Order
The court ordered Smith to file a notice providing more information about the current whereabouts of Dr. Ross and Dr. Kowall so that the marshal could serve them. The court gave Smith 28 days from the filing date of the order to provide that information. It ordered that, if Smith failed to do so, his claims against Dr. Ross and Dr. Kowall would be dismissed without prejudice under Rule 4(m).
The order directed Smith to take a procedural step; it did not itself dismiss those claims. Judge Beth Labson Freeman signed the order.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.