Sims v. Wegman et al
Filing
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ORDER Denying Plaintiff's 28 Motion for Third party Subpoena, Dismissing Defendant C. Bowman, Granting Plaintiff Leave to Amend, and Directing Clerk of Court to Send Plaintiff a Copy of Screening Order signed by Magistrate Judge Erica P. Grosjean on 08/02/2017. (Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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QUINCY SIMS,
Plaintiff,
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v.
C. BOWMAN,
Defendant.
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Case No. 1:14-cv-00415-EPG (PC)
ORDER DENYING PLAINTIFF’S
MOTION FOR THIRD PARTY
SUBPOENA, DISMISSING
DEFENDANT C. BOWMAN,
GRANTING PLAINTIFF LEAVE TO
AMEND, AND DIRECTING CLERK
OF COURT TO SEND PLAINTIFF A
COPY OF SCREENING ORDER (ECF
NO. 10)
(ECF NO. 28)
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Quincy Sims (“Plaintiff”) is proceeding pro se and in forma pauperis in this civil rights
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action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the complaint commencing this action on
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March 24, 2014. (ECF No. 1). This action now proceeds on the First Amended Complaint
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filed on March 10, 2015, against defendant C. Bowman on Plaintiff's Religious Land Use and
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Institutionalized Persons Act of 2000 and First Amendment free exercise claims. (ECF Nos. 8,
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10, & 12).
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On April 7, 2014, Plaintiff consented to magistrate judge jurisdiction in this action
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pursuant to 28 U.S.C. § 636(c) (ECF No. 5), and no other parties have made an appearance.
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Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of
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California, the undersigned shall conduct any and all proceedings in the case until such time as
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reassignment to a District Judge is required. Local Rule Appendix A(k)(3).
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I.
BACKGROUND
On June 7, 2016, the Court issued an order directing the United States Marshal Service
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(“the Marshal”) to serve process upon defendant Bowman. (ECF No. 14). On September 16,
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2016, the Marshal filed a Form USM-285, indicating that the Marshal was unable to locate
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defendant Bowman for service of process. (ECF No. 15). On September 22, 2016, the Court
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issued an order for Plaintiff to show cause why the case should not be dismissed for failure to
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serve defendant Bowman. (ECF No. 16). On October 18, 2016, Plaintiff filed a response.
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(ECF No. 17). Plaintiff stated that he obtained “additional information to provide the Marshal
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for service.” (Id.). Accordingly, the Court discharged the order to show cause and provided
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Plaintiff with the appropriate service documents to complete and return.
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Plaintiff submitted the service documents (ECF No. 19), and the Court directed the Marshal to
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(ECF No. 18).
serve process on defendant Bowman. (ECF No. 20).
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On May 22, 2017, the Marshal filed a Form USM-285, indicating that the Marshal was
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unable to locate defendant Bowman for service of process. (ECF No. 21). Because the
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Marshal was unable to locate defendant Bowman, and because it was unclear why Plaintiff
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believed that defendant Bowman worked at the Pentagon, the Court did not require the Marshal
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to attempt personal service. (ECF No. 22). Instead, the Court required a response from
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Plaintiff regarding how to proceed in light of the failure to locate defendant Bowman. The
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Court gave Plaintiff four options: 1) provide another address for defendant Bowman; 2) provide
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credible evidence indicating that defendant Bowman is at the Pentagon; 3) dismiss defendant
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Bowman from this action without prejudice; or 4) file a motion for a third party subpoena if
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Plaintiff believed there was someone who had documents indicating where defendant Bowman
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could be served.
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On June 12, 2017, Plaintiff responded by filing a motion directing service on the
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Pentagon. (ECF No. 23). Plaintiff asked the Court to order the Marshal to personally serve the
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“service of process receiver” at the Pentagon.
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Plaintiff’s response did not comply with the Court’s order. The Court told Plaintiff that
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if he wanted the Court to order personal service at the Pentagon, he had to provide credible
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evidence indicating that defendant Bowman was at the Pentagon.
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evidence that defendant Bowman was at the Pentagon, Plaintiff asked the Court to order the
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Instead of providing
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Marshal to serve the “service of process receiver” at the Pentagon. Plaintiff provided no
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evidence that this person exists, and did not even provide this person’s name.
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The Court reviewed public records and consulted with the Marshal, and the Court could
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not find any indication of a “service of process receiver” at the Pentagon that is authorized to
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receive service on behalf of military service members. Accordingly, the Court entered an order
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on June 15, 2017, giving Plaintiff the following four options: 1) provide another address for
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defendant Bowman; 2) provide credible evidence indicating that the Pentagon has a “service of
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process receiver” that is authorized to receive service on behalf of military service members; 3)
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dismiss defendant Bowman from this action without prejudice; or 4) file a motion for a third
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party subpoena. (ECF No. 24).
II.
PLAINTIFF’S MOTION FOR THIRD PARTY SUBPOENA
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On July 31, 2017, Plaintiff filed a response to the Court’s order of June 15, 2017. (ECF
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No. 28). While Plaintiff titled the response “motion for a third party subpoena,” Plaintiff once
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again failed to follow the Court’s direction. Plaintiff’s motion states that his claim is actually
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against the California Department of Corrections and Rehabilitation (“CDCR”). Plaintiff then
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asks for a third party subpoena to be issued to C. Wegman, not to identify the location of
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defendant Bowman, but so that C. Wegman can testify “on behalf of the defendant and the
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denial of Plaintiff[’]s rights based on the policy of the CDCR until defendant C. Bowman can
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be located.”
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Instead of attempting to locate defendant Bowman, Plaintiff appears to be attempting to
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amend his complaint to change defendants.
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information to locate Defendant Bowman.
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III.
Plaintiff does not provide any additional
DISMISSAL OF DEFENDANT BOWMAN FOR FAILURE TO SERVE
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Pursuant to Federal Rule of Civil Procedure 4(m),
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If a defendant is not served within 90 days after the complaint is filed, the court
B on motion or on its own after notice to the plaintiff B 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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Fed. R. Civ. P. 4(m).1
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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. Fed. R. Civ. P. 4(c)(3). “‘[A]n
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incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal
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for service of the summons and complaint and ... should not be penalized by having his action
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dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to
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perform his duties….’” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett
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v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990) (alterations in original)), overruled on other
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grounds by Sandin v. Connor, 515 U.S. 472 (1995). “So long as the prisoner has furnished the
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information necessary to identify the defendant, the marshal=s failure to effect service is
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>automatically good cause….’” Walker, 14 F.3d at 1422 (quoting Sellers v. United States, 902
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F.2d 598, 603 (7th Cir.1990)). However, where a pro se plaintiff fails to provide the Marshal
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with accurate and sufficient information to effect service of the summons and complaint,
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dismissal of the unserved defendant is appropriate. Walker, 14 F.3d at 1421-22.
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As discussed in detail above, the Court has given Plaintiff several opportunities to
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provide accurate and sufficient information to the Marshal so that the Marshal could effect
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service of the summons and complaint on defendant Bowman, but Plaintiff has failed to do so.
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Accordingly, the Court will dismiss defendant Bowman from this case, without
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prejudice, due to Plaintiff’s failure to provide the Marshal with accurate and sufficient
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information to effect service of the summons and complaint on defendant Bowman within the
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time period prescribed by Federal Rule of Civil Procedure 4(m).
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IV.
LEAVE TO AMEND COMPLAINT
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Plaintiff’s response appears to allege that his claims may be asserted against the CDCR.
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The CDCR is not currently a defendant in this case. If Plaintiff wishes to assert his claims
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Fed. R. Civ. P. 4(m) was amended in 2015 to reduce the time for serving a defendant from 120 days to
90 days. However, the time period to serve defendant Bowman has expired under both the pre-amendment version
of the rule and the current version rule.
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against the CDCR, he must amend his complaint. The Court will screen that complaint in due
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course.
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The Court has already provided guidance to Plaintiff regarding the legal standards for
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his claims. In the abundance of caution, the Court will send Plaintiff another copy of the
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screening order entered on April 27, 2016 (ECF No. 10).
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The Court notes that “[t]he Eleventh Amendment bars suits for money damages in
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federal court against a state, its agencies, and state officials in their official capacities.”
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Aholelei v. Dept. of Public Safety, 488 F.3d 1144, 1147 (9th Cir. 2007) (citations omitted).
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However, the Eleventh Amendment does not bar suits seeking damages against state officials in
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their personal capacities. Hafer v. Melo, 502 U.S. 21, 30 (1991); Porter v. Jones, 319 F.3d 483,
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491 (9th Cir. 2003). Additionally, the Eleventh Amendment does not bar suits for prospective
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declaratory or injunctive relief against state officials in their official capacities. Ex parte
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Young, 209 U.S. 123, 155-56 (1908); Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 n.
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10 (1989); Kentucky v. Graham, 473 U.S., 159, 167 n. 14 (1985); Flint v. Dennison, 488 F.3d
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816, 825 (9th Cir. 2007). Thus, to the extent that Plaintiff seeks religious accommodations
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going forward, rather than money damages for the past, it is possible that he may have a
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cognizable claim against the CDCR.
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V.
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ORDER
Accordingly, based on the foregoing, IT IS HEREBY ORDERED THAT:
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1. Plaintiff’s motion for a third party subpoena is DENIED;
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2. Defendant Bowman is dismissed from this action, without prejudice, because of
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Plaintiff’s failure to provide the Marshal with accurate and sufficient information
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to effect service of the summons and complaint on defendant Bowman within the
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time period prescribed by Federal Rule of Civil Procedure 4(m);
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3. Plaintiff has thirty (30) days from the date of service of this order to file an
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amended complaint; and
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4. The Clerk of Court is directed to send Plaintiff a copy of the screening order
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entered on April 27, 2016 (ECF No. 10).
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IT IS SO ORDERED.
Dated:
August 2, 2017
/s/
UNITED STATES MAGISTRATE JUDGE
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