Brummett v. Sillen et al

Filing 55

FINDINGS And RECOMMENDATION Recommending Dismissal Of Defendant Doe 1 Without Prejudice For Failure To Serve Pursuant To Federal Of Civil Procedure 4(M) (Doc. 50 ), Objections Due Within Twenty-One Days, signed by Magistrate Judge Dennis L. Beck on 12/12/2011. F&R's referred to Judge Lawrence J. O'Neill; Objections to F&R due by 1/17/2012. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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MELVIN RAY BRUMMETT, JR.,

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CASE NO. 1:06-CV-01255-LJO-DLB PC

Plaintiff,

FINDINGS AND RECOMMENDATION
RECOMMENDING DISMISSAL OF
DEFENDANT DOE 1 WITHOUT
PREJUDICE FOR FAILURE TO SERVE
PURSUANT TO FEDERAL OF CIVIL
PROCEDURE 4(M) (DOC. 50)

v.
ROBERT SILLEN, et al.,
Defendants.

OBJECTIONS DUE WITHIN TWENTY-ONE
DAYS

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/
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Findings And Recommendation

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Plaintiff Melvin Ray Brummett, Jr. (“Plaintiff”) is a prisoner in the custody of the

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California Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro

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se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The Court

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found Plaintiff’s third amended complaint cognizable against Defendants S. Kaur and Doe 1.

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On November 19, 2010, the United States Marshal returned the summons unexecuted as

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to Defendant Doe 1. Doc. 35. On January 7, 2011, the Court granted Plaintiff leave to provide

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additional information as to the identity of Defendant Doe 1 for the United States Marshal to

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effect service. Doc. 39. On November 16, 2011, the Court issued an order to show cause why

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Defendant Doe 1 should not be dismissed from this action for Plaintiff’s failure to provide

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sufficient information for the United States Marshal to effect service of process. Doc. 50. As of

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the date of this order, Plaintiff has not provided additional information.

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In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the
Court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(2). “‘[A]n incarcerated
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pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of

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the summons and complaint and ... should not be penalized by having his action dismissed for

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failure to effect service where the U.S. Marshal or the court clerk has failed to perform his

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duties.’” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett v. Blandford, 912

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F.2d 270, 275 (9th Cir. 1990)), abrogated in part on other grounds, Sandin v. Conner, 515 U.S.

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472 (1995). “So long as the prisoner has furnished the information necessary to identify the

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defendant, the marshal’s failure to effect service is ‘automatically good cause . . . .’” Walker, 14

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F.3d at 1422 (quoting Sellers v. United States, 902 F.2d 598, 603 (7th Cir.1990)). However,

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where a pro se plaintiff fails to provide the Marshal with accurate and sufficient information to

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effect service of the summons and complaint, the Court’s sua sponte dismissal of the unserved

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defendants is appropriate. Walker, 14 F.3d at 1421-22.

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Regarding Defendant Doe 1, on May 3, 2010, the Court ordered Plaintiff to provide

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further information as to a description of the Defendant in order for the Marshal to effect service.

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Doc. 27. On June 1, 2010, Plaintiff provided information as to the general appearance of Doe 1

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and when and where he worked. Doc. 28. On June 8, 2010, the Court ordered the Marshal to

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attempt service of process based on this information. Doc. 31. On November 19, 2010, the

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Marshal returned the summons unexecuted. Doc. 35. According to the USM-285 form, the

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Marshal contacted the CDCR’s Office of Legal Affairs regarding Defendant Doe 1, and was

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unable to identify him. Id. Plaintiff contends that the identity of Defendant Doe 1 is located in

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Plaintiff’s central file. The Court provided leave for Plaintiff to provide additional information

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as to Defendant Doe 1's identity, and warned Plaintiff that if he was not diligent in his efforts,

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Defendant Doe 1 would be dismissed from this action without prejudice. January 7, 2011 Order,

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Doc. 39. More than ten months have passed since the Court’s January 7, 2011 Order granting

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Plaintiff leave to provide additional information.

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Pursuant to Rule 4(m),

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If a defendant is not served within 120 days after the complaint is filed, the court on motion or on its own after notice to the plaintiff - must dismiss the action
without prejudice against that defendant or order that service be made within a
specified time. But if the plaintiff shows good cause for the failure, the court
must extend the time for service for an appropriate period.
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Fed. R. Civ. P. 4(m). Plaintiff has not provided, nor has the Court found, good cause to extend

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the time for service.

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Accordingly, it is HEREBY RECOMMENDED that Defendant Doe 1 be dismissed from
this action without prejudice pursuant to Federal Rule of Civil Procedure 4(m).
These Findings and Recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one

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(21) days after being served with these Findings and Recommendations, the parties may file

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written objections with the Court. Such a document should be captioned “Objections to

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Magistrate Judge's Findings and Recommendations.” The parties are advised that failure to file

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objections within the specified time may waive the right to appeal the District Court's order.

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Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:
77e0d6

December 12, 2011

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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