King v. Holland et al

Filing 45

FINDINGS and RECOMMENDATIONS Recommending Dismissal of Defendant Solis for Failure to Provide Sufficient Information to Effectuate Service, signed by Magistrate Judge Barbara A. McAuliffe on 5/12/17. Referred to Judge Drozd. Objections to F&R Due Within Fourteen Days. (Gonzalez, R)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 RASHAD KING, 11 12 13 Case No. 1:15-cv-01885-DAD-BAM (PC) Plaintiff, v. S. HOLLAND, et al., 14 Defendants. FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF DEFENDANT SOLIS FOR FAILURE TO PROVIDE SUFFICIENT INFORMATION TO EFFECTUATE SERVICE FOURTEEN (14) DAY DEADLINE 15 16 I. Background 17 Plaintiff Rashad King (“Plaintiff”) is a state prisoner proceeding pro se and in forma 18 pauperis in this civil rights action under 42 U.S.C. § 1983. This action proceeds on Plaintiff’s 19 complaint, filed on December 18, 2015, for violations of the Eighth Amendment against 20 Defendants Holland and Duncan for excessive force during the first escort; against Defendants 21 Holland, Duncan, and Solis for excessive force in the second cell; against Defendant Tingley for 22 failing to intervene in the attack by Defendants Holland, Solis, and Duncan in the second cell; and 23 an Eighth Amendment sexual assault against Defendant Holland. 24 II. Service by the United States Marshal 25 On December 22, 2016, the Court ordered the United States Marshal to initiate service of 26 process in this action upon Defendants Holland, Duncan, Solis, and Tingley. (ECF No. 18.) 27 However, the Marshal was unable to locate Defendant Solis and service was returned unexecuted 28 for this defendant on January 26, 2017. (ECF No. 21.) 1 1 On January 27, 2017, the Court issued an order for Plaintiff to show cause why Defendant 2 Solis should not be dismissed from this action under Federal Rule of Civil Procedure 4(m) for 3 failure to effectuate service. (ECF No. 22.) On February 27, 2017, Plaintiff filed a response, 4 contending that he provided sufficient information for service and that he believed CDCR or CCI 5 State Prison had information of the last known address or contact information for Defendant 6 Solis. (ECF No. 23.) On March 6, 2017, the Court discharged the order to show cause and issued 7 a second order directing the United States Marshal to serve Defendant Solis. (ECF Nos. 24, 25.) 8 9 On April 7, 2017, service was again returned unexecuted. The Marshal explained that CDCR was contacted for the last known contact information of Defendant Solis, but the 10 telephone number provided was incorrect, and the waiver packet mailed to the last known address 11 for Defendant Solis was returned to sender. The Marshal also indicated that CDCR no longer 12 employs an investigator who can assist in locating defendants. (ECF No. 33.) 13 The Court issued a second order for Plaintiff to show cause why Defendant Solis should 14 not be dismissed from this action. (ECF No. 38.) Plaintiff filed a response on May 8, 2017, 15 contending that Defendant Solis should be held accountable for his actions. Plaintiff further 16 states that he provided all information to his knowledge regarding Defendant Solis, and he does 17 not have the resources to find Defendant Solis due to his incarceration and lack of attorney 18 assistance. (ECF No. 43.) 19 III. 20 Federal Rule of Civil Procedure 4(m) provides as follows: 21 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. 22 23 Discussion 24 Fed. R. Civ. P. 4(m). Where a pro se plaintiff fails to provide the Marshal with accurate and 25 sufficient information to effect service of the summons and complaint, the Court’s sua sponte 26 dismissal of the unserved defendant is appropriate. Walker v. Sumner, 14 F.3d 1415, 1421–22 27 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). 28 /// 2 1 Here, the Marshal has exhausted all possible avenues for effecting service of process on 2 Defendant Solis using the information Plaintiff previously provided, and has not been able to 3 effect service. Pursuant to Rule 4(m), the Court provided Plaintiff with a second opportunity to 4 show cause why Defendant Solis should not be dismissed from this action, and to provide 5 additional information to locate Defendant Solis. Plaintiff has failed to show cause why 6 Defendant Solis should not be dismissed from this action. 7 Accordingly, it is HEREBY RECOMMENDED that Defendant Solis be DISMISSED 8 from this action, without prejudice, based on Plaintiff’s failure to effect service of the summons 9 and complaint as required by Federal Rule of Civil Procedure 4(m). 10 These Findings and Recommendations will be submitted to the United States District 11 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 12 fourteen (14) days after being served with these Findings and Recommendations, the parties may 13 file written objections with the court. The document should be captioned “Objections to 14 Magistrate Judge’s Findings and Recommendation.” The parties are advised that failure to file 15 objections within the specified time may result in the waiver of the “right to challenge the 16 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 17 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 18 19 20 IT IS SO ORDERED. Dated: /s/ Barbara May 12, 2017 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 3

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