Gonzalez v. Bopari et al

Filing 37

FINDINGS and RECOMMENDATIONS Recommending that Defendant Grimm be Dismissed from this Action for Plaintiff's Failure to Effectuate Service of Process signed by Magistrate Judge Dennis L. Beck on 12/2/2014. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 12/29/2014. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CLEOFAS GONZALEZ,

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Plaintiff,
vs.
DR. BOPARI, et al.,

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Defendants.

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1:12cv01053 LJO DLB PC
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF
DEFENDANT GRIMM
PURSUANT TO RULE 4(M)
TWENTY-ONE DAY DEADLINE

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Plaintiff Cleofas Gonzalez (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 28 U.S.C. § 1983. Plaintiff filed this action on

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June 28, 2012.

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PROCEDURAL HISTORY
On April 23, 2014, the Court screened Plaintiff’s Second Amended Complaint and found
that it stated a claim against Defendants Bopari and Grimm. On May 9, 2014, after Plaintiff

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completed and returned service documents, the Court ordered the United States Marshal to
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initiate service of process.
On August 11, 2014, service was returned executed as to Defendant Bopari. Defendant
Bopari filed a motion to dismiss on September 15, 2014. The motion is pending.

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On September 3, 2014, the United States Marshal returned service unexecuted as to
Defendant Grimm.

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On September 10, 2014, the Court issued an order to show cause to Plaintiff why
Defendant Grimm should not be dismissed pursuant to Federal Rule of Civil Procedure 4(m) for

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failure to effectuate service. On October 14, 2014, the Court granted Plaintiff a thirty-day
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extension of time to locate an address for Defendant Grimm. Despite the extension, Plaintiff has
failed to file a response or provide an alternate address.
DISCUSSION

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Rule 4(m) of the Federal Rules of Civil Procedure provides:

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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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In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of

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the Court, shall serve the summons and the complaint. 28 U.S.C. § 1915(d); Fed. R. Civ. P.

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4(c)(3). “[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the

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U.S. Marshal for service of the summons and complaint and [he] should not be penalized by

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having his action dismissed for failure to effect service where the U.S. Marshal or the court clerk
has failed to perform his duties.” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (internal
quotations and citation omitted), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472
(1995).
“So long as the prisoner has furnished the information necessary to identify the
defendant, the marshal’s failure to effect service is automatically good cause. . . .” Walker, 14
F.3d at 1422 (internal quotations and citation omitted). However, 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.
Walker, 14 F.3d at 1421-22.
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At this juncture, the Marshal’s Office has exhausted the avenues available to it in

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attempting to locate and serve Defendant Grimm. Using information provided by Plaintiff when

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he returned service documents, the Marshal mailed service documents to Defendant Grimm at
Avenal State Prison. However, the CDCR Litigation Coordinator was unable to locate or
identify Defendant Grimm. Walker, 14 F.3d at 1421-22. The Court has also been informed by
its service of process contact that although Defendant Grimm was a contract doctor with CDCR,

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he never worked at Avenal State Prison.
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Plaintiff has not provided any additional information.
FINDINGS AND RECOMMENDATIONS

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Based on the above, the Court RECOMMENDS that Defendant Grimm be DISMISSED
from this action for Plaintiff’s failure to effectuate service of process.
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 Title 28 U.S.C. § 636(b)(1). Within twenty-

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one (21) days after being served with these Findings and Recommendations, any party may file

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written objections with the Court and serve a copy on all parties. Such a document should be

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captioned “Objections to Magistrate Judge's Findings and Recommendations.” Any reply to the

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objections shall be served and filed within seven (7) days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.1991).

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IT IS SO ORDERED.
Dated:

/s/ Dennis

December 2, 2014

L. Beck

UNITED STATES MAGISTRATE JUDGE

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