Harrison v. Adams, et al

Filing 232

FINDINGS and RECOMMENDATION to Dismiss Defendants Zakari, Bastianon, Edmonds, and Raygoza for Insufficient Information to Effect Service of Process; Fourteen (14) Day Objection Deadline signed by Magistrate Judge Michael J. Seng on 4/27/2015. Referred to Judge Anthony W. Ishii. Objections to F&R due by 5/15/2015. (Sant Agata, S)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 MICHAEL D. HARRISON, 10 11 12 Plaintiff, v. 13 14 15 D. ADAMS, et al., Defendants. Case No. 1:08-cv-1065-AWI-MJS (PC) FINDINGS AND RECOMMENDATION TO DISMISS DEFENDANTS ZAKARI, BASTIANON, EDMONDS, AND RAYGOZA FOR INSUFFICIENT INFORMATION TO EFFECT SERVICE OF PROCESS (ECF No. 227) FOURTEEN (14) DAY OBJECTION DEADLINE 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 28 U.S.C. § 1983. The action proceeds against Defendants Jones, Moore, Burns, Dava, Kim, Edmonds, Galvan, C. Gonzalez, M. Gonzalez, Johnson, O’Neal, Parsons, Raygoza, Roth, Tumayo, Urbano, Vicente, Zakari, Bastianon, Casio, Cisneros, Campos, and Coronado on Plaintiff’s Eighth Amendment claims. (ECF No. 160.) Service on Defendants Zakari, Bastianon, Edmonds, and Raygoza was returned unexecuted. (ECF Nos. 177, 179, 193 & 194.) In July 2014, Plaintiff was ordered to show cause why these Defendants should not be dismissed for failure to provide sufficient information for the Marshals to serve the summons and complaint. (ECF No. 1 2 3 4 5 6 7 8 9 10 195.) Plaintiff responded and requested additional time to obtain responses to a pending motion to compel discovery of the full names of these Defendants (ECF Nos. 197 & 198.) The Court granted Plaintiff’s motion to compel in part and discharged the order to show cause. (ECF No. 199.) After Plaintiff failed to take further steps to effect service on Zakari, Bastianon, Edmonds, and Raygoza, the Court ordered him a second time on March 17, 2015 to show cause why these Defendants should not be dismissed. (ECF No. 227.) Plaintiff has failed to respond to the Order to Show Cause, and the time period to do so has passed. Rule 4(m) of the Federal Rules of Civil Procedure provides: 11 14 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. 15 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon 16 order of the Court, shall serve the summons and the complaint. 28 U.S.C. § 1915(d); 17 Fed. R. Civ. P. 4(c)(3). “An incarcerated pro se plaintiff proceeding in forma pauperis is 18 entitled to rely on the U.S. Marshal for service of the summons and complaint and . . . 19 [he] should not be penalized by having his action dismissed for failure to effect service 20 where the U.S. Marshal or the court clerk has failed to perform his duties. . . ” Walker v. 21 Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (internal quotations and citation omitted), 22 abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). “So long as the 23 prisoner has furnished the information necessary to identify the defendant, the marshal’s 24 failure to effect service is automatically good cause. . . .” Walker, 14 F.3d at 1422 25 (internal quotations and citation omitted). However, where a pro se plaintiff fails to 26 provide the Marshal with accurate and sufficient information to effect service of the 27 summons and complaint, the Court’s sua sponte dismissal of the unserved defendants is 28 appropriate. Id., at 1421-22. 12 13 2 1 2 3 Here, Plaintiff has not offered any explanation why he has not and cannot provide information sufficient to effect service of process upon Defendants Zakari, Bastianon, Edmonds, and Raygoza. The obligation to do so is on Plaintiff, not Defendants. Id. 4 Absent additional information about said Defendants’ whereabouts, further attempts at 5 6 service would be futile, and it appears that no further information will be forthcoming. 7 Accordingly, for the reasons stated, the undersigned FINDS that the avenues 8 available to locate and serve Defendants Zakari, Bastianon, Edmonds, and Raygoza 9 have been exhausted and RECOMMENDS that all four Defendants be dismissed from 10 11 this action without prejudice. These Findings and Recommendation are submitted to the United States District 12 13 14 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) days after being served with these Findings and Recommendation, any 15 party may file written objections with the Court and serve a copy on all parties. Such a 16 document should be captioned “Objections to Magistrate Judge’s Findings and 17 Recommendations.” Any reply to the objections shall be served and filed within 18 19 fourteen (14) days after service of the objections. The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal. 20 21 22 Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 23 24 IT IS SO ORDERED. 25 26 Dated: April 27, 2015 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 27 28 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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