Smith v. Fu
- Beth Freeman
- 5:19-cv-02119-BLF
- U.S. District Court · Northern District of California
- 2
In Smith v. Fu, Judge Freeman ordered personal service on Dr. Rachel Lee Ross, leaving one claim pending after earlier summary-judgment rulings.
Jason A. Smith and Dr. Rachel Lee Ross; the order also directs the Clerk and United States Marshal to carry out personal service.
What happened
In Smith v. Fu, Jason A. Smith, a California state prisoner representing himself, sued medical officials at the Correctional Training Facility under a federal civil-rights law. The court had already granted summary judgment to several defendants, leaving only Smith’s claim against Dr. Rachel Lee Ross.
Dr. Ross had not responded to the latest summons sent to the address Smith provided, so the record did not show that she had been served. The court ordered the United States Marshal to personally serve Dr. Ross with the complaint, summons, and related orders.
Judge Beth Labson Freeman warned that Smith remained responsible for completing service within the time allowed by the federal service rule. If service was unsuccessful and Smith could not show good cause, the claims against Dr. Ross would be subject to dismissal without prejudice. The order did not dismiss those claims.
The detailed version
- Smith v. Fu · No. 5:19-cv-02119-BLF
- Beth Freeman
- May 7, 2021
Background
Jason A. Smith, identified as a California state prisoner, filed a civil-rights complaint without a lawyer under 42 U.S.C. § 1983 against medical officials at the Correctional Training Facility. The court had granted summary judgment—a decision resolving claims based on the evidence rather than a trial—to Law Fu, Dr. Mark Kowall, M. Votaw, and S. Posson. The only remaining claim was against Dr. Rachel Lee Ross.
Service problem
No response had been received to the latest summons sent to Dr. Ross at the address Smith provided. The court therefore found no indication that Dr. Ross had been served in the case.
Order
In the interest of justice, the court ordered the Clerk to issue a summons and the United States Marshal to personally serve Dr. Rachel Lee Ross with the complaint, the court’s earlier service orders, and this order. The order did not dismiss the claim against Dr. Ross.
Judge Beth Labson Freeman advised Smith that it was ultimately his responsibility to complete service within the period allowed by Federal Rule of Civil Procedure 4(m). The order stated that, if personal service was unsuccessful at the provided address and Smith could not show good cause, the claims against Dr. Ross would be subject to dismissal without prejudice. This was a warning about a possible later dismissal, not a dismissal entered by this order.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.