Lamon v. Amrheign et al

Filing 100

FINDINGS and RECOMMENDATIONS Recommending Dismissal of Defendant Amrhein, without Prejudice, for Failure to Effectuate Service signed by Magistrate Judge Barbara A. McAuliffe on 11/06/2017. Referred to Judge Drozd; Fourteen-Day Deadline. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BARRY LOUIS LAMON,

Case No.: 1:12-cv-00296-DAD-BAM-PC

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Plaintiff,

FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF
DEFENDANT AMRHEIN, WITHOUT
PREJUDICE, FOR THE FAILURE TO
EFFECTUATE SERVICE

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v.
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B. AMRHEIGN, et al.,
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Defendants.

[ECF No. 99]

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FOURTEEN (14) DAY DEADLINE
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Plaintiff Barry Louis Lamon is a state prisoner proceeding pro se and in forma pauperis

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15 in this civil rights action pursuant to 42 U.S.C. § 1983.
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Service of Process

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On October 27, 2016, the Court issued an order directing the United States Marshal to

18 initiate service of process in this action upon Defendant Amrhein, among other defendants. (ECF
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19 No. 61.)

On November 28, 2016, the United States Marshal filed a return of service unexecuted as

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21 to Defendant Amrhein. (ECF No. 31). The USM-285 form stated that CDCR reported that they
22 did not have a current or former employee by the name, “Amreign.” (Id. at 1.) In a subsequent
23 series of filings, Plaintiff provided additional information related to service, including that
24 Defendant Amrhein was employed as a supervising registered nurse at Corcoran State Prison
25 from 2008 through 2009, and that the correct spelling of her name is “Barbara Amrhein.” (ECF
26 Nos. 64, 66, 67, 74, 83.)
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As explained in this order, Defendant Amrhein was erroneously sued as “B. Amrheign.”

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On September 12, 2017, the Court issued an order directing the United States Marshal to

2 attempt re-service with the new information outlined above. (ECF No. 86.)
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On October 2, 2017, the United States Marshal filed a return of service unexecuted as to

4 Defendant Amrhein. (ECF No. 99). The USM-285 form states that Defendant Amrhein was
5 identified, and it was confirmed that she left employment with the California Department of
6 Corrections and Rehabilitation (“CDCR”) in 2009. CDCR does not have authority to accept
7 service, but Human Resources provided the Marshal with a last known address. On September
8 15, 2017, a waiver was mailed to the last known address, but it was returned, and the Marshal
9 confirmed that Defendant Amrhein does not live at the last known address.
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A.

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Federal Rule of Civil Procedure 4(m) provides as follows:

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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 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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Legal Standards

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16 Fed. R. Civ. P. 4(m). Where a pro se plaintiff fails to provide the Marshal with accurate and
17 sufficient information to effect service of the summons and complaint, the Court’s sua sponte
18 dismissal of the unserved defendant is appropriate. Walker v. Sumner, 14 F.3d 1415, 1421-22
19 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995).
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B.

Discussion

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In this case, Plaintiff has not provided accurate and sufficient information to locate

22 Defendant Amrhein for service of process. Service was attempted through CDCR, Defendant
23 Amrhein’s former employer, using the information provided by Plaintiff, but Defendant Amrhein
24 was unable to be served at Corcoran State Prison. Further, the Marshal used the forwarding
25 address information provided by CDCR’s Human Resources to attempt service, but was unable
26 to serve Defendant Amrhein at the address provided. All information provided to attempt service
27 of process on Defendant Amrhein has now been exhausted.
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In light of the foregoing, the undersigned recommends that Defendant Amrhein be

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2 dismissed, without prejudice, based on Plaintiff’s failure to serve process on that defendant.
3 II.

Conclusion and Recommendations

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Accordingly, it is HEREBY RECOMMENDED that Defendant Amrhein be dismissed

5 from this action, without prejudice, for failure to serve process under Rule 4(m).
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These findings and recommendations will be submitted to the United States District

7 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within
8 fourteen (14) days after being served with these findings and recommendations, the parties may
9 file written objections with the Court. The document should be captioned “Objections to
10 Magistrate Judge’s Findings and Recommendations.” The parties are advised that failure to file
11 objections within the specified time may result in the waiver of the “right to challenge the
12 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.
13 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:

/s/ Barbara

November 6, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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