Bruce v. Woodford, et al.

Filing 88

ORDER RE MOTIONS 85 , 86 ; FINDINGS and RECOMMENDATIONS Recommending That Defendant Sanchez be Dismissed; Objections Due Within 30 Days signed by Magistrate Judge Sheila K. Oberto on 9/21/2010. It is HEREBY ORDERED that Plaintiff's motion for an extension of time to treat his response to the Courts order to show cause as timely filed is GRANTED; and Plaintiff's motion requesting further assistance in locating Defendant Sanchez is DENIED. Referred to Judge Anthony W. Ishii. Objections to F&R due by 10/25/2010. (Bradley, A)

(PC) Bruce v. Woodford, et al.

Doc. 88

1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 15 / 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Vincent C. Bruce ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. On December 1, 2009, the Court ordered a U.S. Marshal to serve Defendants Fields, Fulks, Sanchez, and Ward with a summons and a copy of Plaintiff's third amended complaint. (Doc. #55.) Defendants Fields, Fulks, and Ward were served or have filed waivers of service and have made an appearance in this action. Defendant Sanchez has not been served and has not otherwise made an appearance in this action. On July 16, 2010, a summons was returned unexecuted as to Defendant Sanchez. (Doc. #76.) On August 11, 2010, the Court ordered Plaintiff to show cause why Defendant Sanchez should not be dismissed from this action due to Plaintiff's failure to effect service of process on him. Plaintiff filed a late response to the order to show cause on September 13, 2010. Plaintiff also filed a motion requesting that an extension of time be granted nunc pro tunc and that the Court treat the 1
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UNITED STATES DISTRICT COURT

VINCENT C. BRUCE, Plaintiff, v. JEANNE WOODFORD, et al., Defendants.

CASE NO. 1:07-cv-00269-AWI-SKO PC ORDER RE MOTIONS (Doc. 85, 86) and F IN D IN G S AND RECOMMENDATIONS R E C O M M E N D IN G THAT DEFENDANT SANCHEZ BE DISMISSED OBJECTIONS DUE WITHIN 30 DAYS

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response as timely filed. (Doc. #85.) The Court will grant Plaintiff's request. However, the Court finds that Plaintiff has failed to show cause and will recommend that Defendant Sanchez be dismissed from this action. "`[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the summons and complaint and . . . should not be penalized by having his action dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to perform his duties.1'" Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990)), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). Where a pro se plaintiff fails to provide the Marshal with accurate and sufficient information to effect service of the summons and complaint, the court's sua sponte dismissal of the unserved defendants is appropriate. Id. at 1421-22. Plaintiff's response to the order to show cause does not provide the Court or the U.S. Marshal with any updated contact information for Defendant Sanchez. Plaintiff argues that he "has not been privy to what efforts and assistance [the California Department of Corrections and Rehabilitation] has provided" to the U.S. Marshal to locate Defendant Sanchez. Plaintiff requests that the Court order the California Department of Corrections and Rehabilitation to hire a special investigator to locate Defendant Sanchez. In the order directing the U.S. Marshal to serve Defendant Sanchez, the Court ordered the U.S. Marshal to "command all necessary assistance from the California Department of Corrections and Rehabilitation (CDCR) to execute [service]." (Order Directing Service by the United States Marshal Service Without Prepayment of Costs 2:9-12, ECF No. 55.) The only address that Plaintiff provided for Defendant Sanchez is the address for Wasco State Prison, where Sanchez was employed at some point in time. The summons filled out by Plaintiff acknowledged that Sanchez may no longer work at Wasco State Prison because he may be retired. The unexecuted summons indicates that the U.S. Marshal received a home address for Defendant Edward Sanchez ­ presumably provided by Wasco State Prison or CDCR. The U.S.

A lth o u g h Plaintiff is not proceeding in forma pauperis, the Court directed the U.S. Marshal effect service o f process under Federal Rule of Civil Procedure 4(c)(3).

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Marshal attempted to mail a waiver of service to that address. When the waiver was not returned, the U.S. Marshal attempted to personally serve Defendant Sanchez at that address but was told that Defendant Sanchez did not live there. Thus, it appears that CDCR has assisted the U.S. Marshal with locating Defendant Sanchez. Plaintiff has failed to provide any additional information regarding Defendant Sanchez's whereabouts that suggests that the appointment of a special investigator would provide the U.S. Marshall with substantial aid for locating Sanchez. The Court is satisfied with the efforts that the U.S. Marshal has made to "command all necessary resources" from CDCR to locate and serve Defendant Sanchez. There is no indication that the failure to effect service was due to the U.S. Marshal's failure to perform his or her duties. It is Plaintiff's responsibility to provide the U.S. Marshal with sufficient information to locate and serve Defendant Sanchez. Plaintiff has failed to cite any authority that suggests that the U.S. Marshal or CDCR is obligated to undertake any further effort to locate Defendant Sanchez on Plaintiff's behalf. Since the U.S. Marshal was unable to locate and serve Defendant Sanchez with the information provided by Plaintiff, the Court will recommend that Defendant Sanchez be dismissed from this action pursuant to Federal Rule of Civil Procedure 4(m). Accordingly, it is HEREBY ORDERED that: 1. Plaintiff's motion for an extension of time to treat his response to the Court's order to show cause as timely filed is GRANTED; and 2. Plaintiff's motion requesting further assistance in locating Defendant Sanchez is DENIED. Further, it is HEREBY RECOMMENDED that Defendant Sanchez be dismissed from this action pursuant to Federal Rule of Civil Procedure 4(m). These Findings and Recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) days after being served with these Findings and Recommendations, any party may file written objections with the Court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten (10) days after service of the objections. The parties are advised 3

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that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

IT IS SO ORDERED. Dated: ie14hj September 21, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE

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