Azucena v. Runjyin

Background

Caleb J. Azucena filed the action without a lawyer on or about June 29, 2023. On January 12, 2024, the court screened the operative complaint and found that it stated a facially plausible Bivens claim against United States Customs and Border Protection agent Runjyin. A Bivens claim is a claim seeking a remedy for an alleged constitutional violation by a federal official; this order did not decide whether Azucena would ultimately prevail on that claim.

The court had directed the Clerk to issue a summons and the United States Marshal to serve the complaint and service order on Runjyin at a Customs and Border Protection office in San Francisco, with a courtesy copy sent to the agency's San Francisco associate chief counsel. On March 21, 2024, the Marshal filed an unexecuted summons. The Marshal reported that a supervisor had searched the agency's employee database but could not locate an employee with Runjyin as either a first or last name.

Order

The court explained that a plaintiff who is incarcerated and proceeding without a lawyer may rely on service by the Marshal but must still request service and try to correct known problems. Under Federal Rule of Civil Procedure 4(m), a case pending for more than 90 days may be dismissed without prejudice absent good cause. The court found that Azucena had not provided enough information for the Marshal to locate and serve Runjyin.

The court ordered Azucena, within 28 days of the order, either to effect service on Runjyin or to submit sufficient information to identify and locate Runjyin so that the Marshal could effect service. The court did not dismiss the action in this order. Instead, it warned that failure to meet the deadline would result in dismissal of the action against Runjyin without prejudice under Rule 4(m) and dismissal of the action for failure to prosecute under Rule 41(a).