1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 SAMUEL JAY MILES, 1:22-cv-01105-KES-SKO (PC)

10 Plaintiff, ORDER FOR FRESNO COUNTY

SHERIFF TO SHOW CAUSE WHY

11 v. SANCTIONS SHOULD NOT BE

IMPOSED FOR FAILURE TO ASSIST

12 FRESNO COUNTY MEDICAL WITH SERVICE OF PROCESS

WELLPATH,

13 (Doc. 36) Defendant. 14

15 16 Plaintiff Samuel Jay Miles, presently incarcerated at Valley State Prison and previously 17 held in the Fresno County Jail, is proceeding pro se and in forma pauperis in this civil rights 18 action pursuant to 42 U.S.C. § 1983. 19 I. BACKGROUND 20 On June 4, 2025, the Court issued its Order Directing Service by the United States 21 Marshals Service (USMS) Without Prepayment of Costs. (Doc. 29.) The USMS was directed to 22 serve Defendants Alvarez, Arce, Buchanan, Cagara, Duran, Gill, Guerrero, Nunez, Ramirez, 23 Thao, Xiong, and Zaragoza. (Id. at 2.) 24 On August 1, 2025, Waivers of Service of Summonses were filed on behalf of Defendants 25 Arce, Buchanan, Duran, Guerrero, and Ramirez. (Doc. 30.) That same date, Defendants Arce, 26 Buchanan, Duran, Guerrero and Ramirez filed an answer to the operative complaint. (Doc. 31.) 27 On August 5, 2025, Defendant Xiong filed a Waiver of Service of Summons and an answer to the 28 complaint. (Docs. 32 & 33.) On August 19, 2025, Defendant Thao filed a Waiver of Service of 1 Summons and an answer to the complaint. (Docs. 34 & 35.) 1 2 On August 21, 2025, the USMS attempted personal service on Defendants Michellene 3 Alvarez, Kenneth Cagara, Kanwar Gill, Jessica Nunez, and Rose Zaragoza, but the summonses 4 were returned unexecuted as service was refused by “Braulio Mendoza, Asst Health Services 5 Admin” at the Fresno County Jail. (Doc. 36 at 1-5.) Mendoza told the deputy marshal he was 6 unable to accept service on behalf of Alvarez, Cagara, Gill, Nunez, and Zaragoza because he was 7 not sure if they were still employed at the facility. Mendoza also advised the deputy that the jail 8 had a “change in policy to not accept service on behalf of someone else” where employment 9 status was unknown. Mendoza did not provide the deputy with an alternate resource for 10 employment verification for Alvarez, Cagara, Gill, Nunez, or Zaragoza. 11 II. DISCUSSION 12 Rule 4 of the Federal Rules of Civil Procedure provides, in relevant part: 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 14 dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff 15 shows good cause for the failure, the court must extend the time for service for an appropriate period. 16 17 Fed. R. Civ. P. 4(m). 18 In cases involving plaintiffs proceeding in forma pauperis, the court routinely orders the 19 USM to serve summonses and complaints on the defendants. Fed. R. Civ. P. 4(c)(3). “[A]n 20 incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal 21 for service of the summons and complaint, and ... should not be penalized by having his or her 22 action dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to 23 perform the duties required.” Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). “So long as the 24 prisoner has furnished the information necessary to identify the defendant, the marshal's failure to 25 effect service is automatically good cause.” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) 26 (internal quotation marks & citation omitted), abrogated on other grounds by Sandin v. Connor, 515 27 1 The answering Defendants are represented by Paul A. Cardinale with the Medical Defense Law Group 28 and Subreen Sandhu with Cardinale Fayard/MDLG. 1 U.S. 472, 115 (1995). However, where a pro se plaintiff fails to provide the USMS with sufficient 2 information to effectuate service on a defendant, the court may dismiss the action against that 3 defendant. Id. at 1421-22. 4 Pursuant to its inherent powers, a court may impose sanctions where a party has willfully 5 disobeyed a court order, or where the party has “acted in bad faith, vexatiously, or for oppressive 6 reasons.” Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 557 (2014) (citation 7 omitted). “The court’s inherent authority to sanction includes not only the authority to sanction a 8 party, but also the authority to sanction the conduct of a nonparty who participates in abusive 9 litigation practices, or whose actions or omissions cause the parties to incur additional expenses.” In 10 Re Avon Townhomes Venture, 433 B.R. 269, 304 (Bankr. N.D. Cal.2010) (citations omitted); see also 11 Chambers v. NASCO, Inc., 501 U.S. 32, 50-51 (1991) (affirming imposition of sanctions against 12 nonparty); Corder v. Howard Johnson & Co., 53 F.3d 225, 232 (9th Cir. 1994) (“[E]ven in the 13 absence of statutory authority, a court may impose attorneys’ fees against a nonparty as an exercise of 14 the court's inherent authority to impose sanctions to curb abusive litigation tactics” [citation omitted]); 15 Seco Nevada v. McMordie (In re Holloway), 884 F.2d 476, 477 (9th Cir. 1989) (affirming sanctions 16 against non-party court reporter). Similarly, in Lockary v. Kayfetz, 974 F.2d 1166 (9th Cir. 1992), 17 abrogated on other grounds by Margolis v. Ryan, 140 F.3d 850, 854-55 (9th Cir. 1998), the Ninth 18 Circuit noted that a court has authority to sanction a nonparty that supplies a litigant's attorneys and 19 “fund[s] the litigation in its entirety.” Id. at 1171. 20 Here, as reflected on the USM-285 forms, the USMS attempted to serve Defendants Alvarez, 21 Cagara, Gill, Nunez, and Zaragoza but was unable to do so and has not been assisted by Fresno 22 County Jail personnel. As the USMS cannot execute its mandate to serve the complaint on behalf of 23 Plaintiff without the assistance of Fresno County personnel, the Court will order the Fresno County 24 Sheriff, John Zanoni, to show cause why sanctions should not be imposed. See, e.g., Patron v. Hugh, 25 No. 1:24-cv-00655-JLT-SAB (PC), 2024 WL 4843799, at *1-2 (E.D. Cal. Nov. 20, 2024) (Sheriff 26 Zanoni ordered to show cause why sanctions should not be imposed for Fresno County personnel’s 27 failure to assist USMS in serving Defendants Mares and Herara employed at Fresno County Jail). The 28 Court will also direct that this order be served on Fresno County Counsel. 1 III. CONCLUSION AND ORDER 2 Based on the foregoing, the Court HEREBY ORDERS: 3 1. Within fourteen (14) days from the date of service of this order, Fresno County 4 Sheriff John Zanoni SHALL show cause why sanctions should not be imposed for 5 failing to assist the United States Marshal with service of process as to Defendants 6 Michellene Alvarez, Kenneth Cagara, Kanwar Gill, Jessica Nunez, and Rose 7 Zaragoza; and 8 2. The Clerk of the Court is directed to serve a copy of this order on Fresno County 9 Counsel at 2220 Tulare St., Fresno, CA 93721. 10

IT IS SO ORDERED.

11

12 Dated: October 6, 2025 /s/ Sheila K. Oberto .

UNITED STATES MAGISTRATE JUDGE

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