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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1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 BARRY LOUIS LAMON, Case No.: 1:12-cv-00296-DAD-BAM-PC 7 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF DEFENDANT AMRHEIN, WITHOUT PREJUDICE, FOR THE FAILURE TO EFFECTUATE SERVICE 8 v. 9 B. AMRHEIGN, et al., 10 Defendants. [ECF No. 99] 11 FOURTEEN (14) DAY DEADLINE 12 13 Plaintiff Barry Louis Lamon is a state prisoner proceeding pro se and in forma pauperis 14 15 in this civil rights action pursuant to 42 U.S.C. § 1983. 16 I. Service of Process 17 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 1 19 No. 61.) On November 28, 2016, the United States Marshal filed a return of service unexecuted as 20 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.) 27 28 1 As explained in this order, Defendant Amrhein was erroneously sued as “B. Amrheign.” 1 1 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.) 3 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. 10 A. 11 Federal Rule of Civil Procedure 4(m) provides as follows: 12 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. 13 14 Legal Standards 15 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). 20 B. Discussion 21 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. 28 /// 2 In light of the foregoing, the undersigned recommends that Defendant Amrhein be 1 2 dismissed, without prejudice, based on Plaintiff’s failure to serve process on that defendant. 3 II. Conclusion and Recommendations 4 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). 6 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)). 14 15 16 IT IS SO ORDERED. Dated: /s/ Barbara November 6, 2017 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 3

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