Smith v. Fu
- Beth Freeman
- 5:19-cv-02119-BLF
- U.S. District Court · Northern District of California
- 3
In Smith v. Ross, Judge Freeman ordered Jason Smith to provide information needed to serve Dr. Rachel Ross, warning the claim could otherwise be dismissed without prejudice.
Jason Smith must provide information about Dr. Rachel Ross’s current whereabouts within 28 days to allow service. The order warns that Smith’s claim against Ross will be dismissed without prejudice if he does not comply; no dismissal occurred in this order.
What happened
Smith v. Dr. Rachel Ross involves Jason Smith’s civil-rights claim against personnel at the Correctional Training Facility. The court had found that his complaint stated a claim under the Eighth Amendment based on alleged deliberate indifference to serious medical needs, and Smith chose to proceed only on that claim.
Attempts to serve Dr. Ross failed because the first address indicated she was no longer at the facility, and a later address was an empty office. The court gave Smith 28 days to provide information about Ross’s current whereabouts so the U.S. Marshal could try service again.
Judge Beth Labson Freeman ordered Smith to provide that information. The order warned that if he did not do so within 28 days, his claim against Ross would be dismissed without prejudice under Rule 4(m) of the Federal Rules of Civil Procedure; the order did not itself dismiss the claim.
The detailed version
- Smith v. Fu · No. 5:19-cv-02119-BLF
- Beth Freeman
- Aug. 26, 2021
Background
Jason Smith, who was incarcerated at the Correctional Training Facility, filed this lawsuit without a lawyer under 42 U.S.C. § 1983. The court’s initial review found that the complaint stated a legally recognizable Eighth Amendment claim alleging deliberate indifference to serious medical needs. Smith then notified the court that he wanted to proceed only on that claim.
Dr. Rachel Ross was the only remaining defendant. The first mailing to Ross was returned without service and indicated that she was no longer with the facility. Smith later provided an address in Rancho Cordova. The court directed the U.S. Marshal to serve Ross at that address, but the attempt failed. A later attempt at personal service also failed because the address was wrong and Suite 210 was empty office space.
Issue
The issue was whether Smith had provided enough information for the Marshal to serve Ross, and what would happen if service was not completed within the time allowed by Federal Rule of Civil Procedure 4(m). That rule permits dismissal without prejudice when a defendant is not served within the required period unless the plaintiff shows good cause.
Court’s action
The court ordered Smith to file a notice giving more information about Ross’s current whereabouts so that the Marshal could attempt service. The court gave him 28 days from the filing date of the order to provide the information. It warned that, if he failed to do so, his claim against Ross would be dismissed without prejudice under Rule 4(m).
The order did not itself dismiss Smith’s claim. It addressed service of process, not whether Smith would ultimately prevail on his Eighth Amendment claim. Judge Beth Labson Freeman signed the order.
Disposition
The court issued an order directing the plaintiff to provide more information for the unserved defendant. The order warned of possible dismissal without prejudice if Smith failed to comply within 28 days.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.