Valdez v. Beard et al

Filing 81

FINDINGS and RECOMMENDATIONS recommending that Defendant Romo be DISMISSED pursuant to Rule 4(m) for Failure to effect timely service re 16 Amended Prisoner Civil Rights Complaint filed by Ruben Valdez ;referred to Judge Ishii; ORDER DENYING 73 Motion to Stay,signed by Magistrate Judge Michael J. Seng on 8/11/17.(Objections to F&R due 14-Day Deadline) (Martin-Gill, S)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RUBEN VALDEZ, Plaintiff, 12 13 14 15 16 17 v. JEFFREY BEARD, et al., Defendants. 1:14-cv-01839-AWI-MJS (PC) ORDER DENYING PLAINTIFF’S MOTION TO STAY; AND FINDINGS AND RECOMMENDATIONS TO DISMISS DEFENDANT ROMO PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 4(M) (ECF NO. 73) FOURTEEN-DAY DEADLINE 18 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil 19 20 rights action brought pursuant to 42 U.S.C. § 1983. This matter proceeds on Plaintiff’s Fourth Amended Complaint due process claim relating to periodic reviews of Plaintiff’s 21 placement in the Security Housing Unit due to his gang validation. All Defendants have 22 now been served and have appeared but for Defendant Romo. 23 On March 30, 2017, a summons was returned unexecuted as to Romo with the 24 following notation: “Per L/O, it was confirmed there was no L. Romo working at 25 [Corcoran State Prison] at the referenced time frame in the complaint. They will not 26 accept service. They believe the incorrect social worker was listed.” (ECF No. 71.) 27 Plaintiff was then ordered to submit new information for Romo within thirty days and was 28 1 1 informed that failure to do so could result in the dismissal of his claim against that 2 Defendant pursuant to Federal Rule of Civil Procedure 4(m). 3 Plaintiff responded with a motion to stay service pending discovery and/or to order 4 Defendants to reveal the potential defendant’s real name. (ECF No. 73.) Plaintiff claims 5 that his only knowledge of the defendant’s s name is “from what CDCR officials provided 6 to him as to those who made the decisions against him.” Mot. to Stay at 1. Federal Rule of Civil Procedure 4(m) provides in relevant part: 7 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 ... 8 9 10 11 12 The 90-day limit “operates not as an outer limit subject to reduction, but as an 13 irreducible allowance.” Henderson v. United States, 517 U.S. 654, 661 (1996). “At a 14 minimum, ‘good cause’ means excusable neglect.” Boudette v. Barnette, 923 F.2d 754, 15 756 (9th Cir. 1991). The court has broad discretion to extend time for service under Rule 16 4(m), even absent a showing of good cause for delay that would mandate an extension 17 of time. Henderson, 517 U.S. at 662; Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 18 2007). 19 Plaintiff does not describe any effort by him, subsequent to the Court’s order, to 20 locate the defendant or identify information leading to his whereabouts. This reflects 21 lack of diligence on his part. Plaintiff could have sought such information through the 22 California Public Records Act, Calif. Gov't. Code § 6250, et seq., or other typical means 23 available to him, including discovery, which was open during this period. Instead of 24 availing himself of such opportunities, he seeks more time to undertake them and/or an 25 order directing Defendants to provide information to him. 26 Without any information to help identify this individual, the Court declines to direct 27 Defendants to conduct a fishing expedition on Plaintiff’s behalf. See Armstrong v. 28 Runnels, 2008 WL 1701906 (E.D. Cal. April 10, 2008) (“While the court can make 2 1 reasonable orders for opposing counsel to obtain and provide information that would 2 assist in effecting service of process on a defendant whose identity is known, the court 3 cannot direct opposing counsel to conduct a fishing expedition that may or may not 4 reveal the correct name of a defendant. There simply is no basis in the law for the court 5 to make such an order.”) For the same reasons, the Court declines to exercise its 6 discretion to extend the time for Plaintiff, who did not act when and as he could to find 7 this Defendant, to now go fishing himself. 8 9 10 11 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s motion to stay service (ECF No. 73) is DENIED; and IT IS HEREBY RECOMMENDED that Defendant Romo be dismissed pursuant to Rule 4(m) for failure to effect timely service. 12 These findings and recommendations are submitted to the United States District 13 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 14 days after being served with these findings and recommendations, any party may file 15 written objections with the court. The document should be captioned “Objections to 16 Magistrate Judge's Findings and Recommendations.” Failure to file objections within the 17 specified time may waive the right to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th 18 Cir. 1991). 19 IT IS SO ORDERED. 20 21 Dated: August 11, 2017 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?