Jones et al v. Tulare County et al

Filing 103

Findings and Recommendations recommending that certain Defendants be dismissed from this Action, without Prejudice, signed by Magistrate Judge Erica P. Grosjean on 2/1/2018. Matter referred to Judge O'Neill. Objections to F&R due by 2/18/2018. (Rosales, O)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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FINDINGS AND RECOMMENDATIONS
RECOMMENDING THAT CERTAIN
DEFENDANTS BE DISMISSED FROM
THIS ACTION, WITHOUT PREJUDICE

v.

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Case No. 1:15-cv-01779-LJO-EPG

WILLIAM FABRICIUS,

TULARE COUNTY, et al.,

(ECF No. 92)

Defendants.
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FOURTEEN (14) DAY DEADLINE

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I.

RELEVANT PROCEDURAL HISTORY
Plaintiff William Fabricius, proceeding pro se and in forma pauperis, filed a Third

Amended Complaint (“3AC”) in this action on July 24, 2017. (ECF No. 75). On July 31, 2017,
the Court issued an order directing Plaintiff to complete and submit service documents for any
defendants listed in his 3AC who were not previously served in the action. (ECF No. 76.) On
October 25, 2017, Plaintiff submitted service documents for 18 defendants, including Valeriano
Saucedo, Thomas Elliott Hornburg, Ralph Mario Agnello, Cecile F. Shaffer, Kathleen Marie
Bales-Lange, Lisa Marie Tennenbaum, and Zendajas (“the unserved defendants”). (ECF No.
91). Plaintiff indicated that the defendants could be located at the address of the County of
Tulare. Id. On October 30, 2017, the Court directed the United States Marshal Service (“the
Marshal”) to serve process upon the 18 defendants.
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On October 31, 2017, the summonses for the unserved defendants were returned

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unexecuted because the Marshal was unable to locate the defendants. (ECF Nos. 93, 94, 95).

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The Marshal stated that the County of Tulare would not accept service for Valeriano Saucedo,

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Thomas Elliott Hornburg, Ralph Mario Agnello, and Zendajas because they are not County

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employees, and would not accept service for Kathleen Marie Bales-Lange and Lisa Marie

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Tennenbaum because they retired without providing a forwarding address to the County.

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Plaintiff has not otherwise provided proof of service of process for the unserved

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defendants.

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II.

SERVICE BY THE UNITED STATES MARSHAL SERVICE

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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).

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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). However,

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where a pro se plaintiff fails to provide the Marshal with accurate and sufficient information to

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effect service of the summons and complaint, dismissal of the unserved defendant is

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appropriate. Walker v. Sumner, 14 F.3d 1415, 1421-1422 (9th Cir. 1994) overruled on other

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grounds by Sandin v. Conner, 515 U.S. 472 (1995). “Although a plaintiff . . . proceeding in

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forma pauperis may rely on service by the Marshal, the plaintiff may not remain silent and do

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nothing to effectuate such service; rather, at a minimum, a plaintiff should request service upon

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the appropriate defendant and attempt to remedy any apparent defects of which he has

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knowledge.” Harbridge v. Hall, Lee, & Tucker, No. 110-CV-00473-DAD-JLT, 2017 WL

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1821282, at *2 (E.D. Cal. May 5, 2017) (quoting Rochon v. Dawson, 828 F.2d 1107, 1110 (5th

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Cir.1987) (internal quotations marks and alterations omitted).

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III.

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ANALYSIS
The return of service filed by the Marshal on October 31, 2017, indicates that the
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Marshal attempted to serve process upon the unserved defendants. (ECF Nos. 93, 94, 95). In

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addition, the Marshal certified that it was unable to locate the unserved defendants. Id.

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It has now been more than ninety days since the Court directed service of process on the

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eighteen defendants, and Plaintiff has failed to provide the Marshal with accurate and sufficient

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information to effect service of process. Plaintiff, thus, has failed to serve Valeriano Saucedo,

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Thomas Elliott Hornburg, Ralph Mario Agnello, Cecile F. Shaffer, Kathleen Marie Bales-

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Lange, Lisa Marie Tennenbaum, and Zendajas within the time period required by Federal Rule

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of Civil Procedure 4(m). Accordingly, the Court recommends that the unserved defendants be

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dismissed from this action, without prejudice.

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IV.

CONCLUSION AND RECOMMENDATION

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Based on the foregoing, the Court HEREBY RECOMMENDS that Valeriano Saucedo,

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Thomas Elliott Hornburg, Ralph Mario Agnello, Cecile F. Shaffer, Kathleen Marie Bales-

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Lange, Lisa Marie Tennenbaum, and Zendajas be dismissed from this action because of

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Plaintiff’s failure to provide the Marshal with accurate and sufficient information to effect

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service of the summons and complaint upon these defendants within the time period prescribed

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by Federal Rule of Civil Procedure 4(m).

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These findings and recommendations will be submitted to the United States District

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Court Judge assigned to this action pursuant to the provisions of 28 U.S.C. § 636 (b)(1).

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Within fourteen (14) days after being served with a copy of these findings and

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recommendations, any party may file written objections with the Court and serve a copy on all

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parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Any reply to the objections shall be served and filed within seven (7)

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days after service of the objections.

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

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result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.

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2014) (quoting Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

February 1, 2018

/s/
UNITED STATES MAGISTRATE JUDGE

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