Simonson v. Singh et al

Filing 36

FINDINGS and RECOMMENDATIONS to Dismiss for Failure to Identify Proper Defendant signed by Magistrate Judge Michael J. Seng on 11/06/2017. Referred to Judge O'Neill;Fourteen-Day Deadline.(Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CRAIG SIMONSON, 12 13 14 15 Plaintiff, v. T. SINGH, CASE No. 1:16-cv-00126-LJO-MJS FINDINGS AND RECOMMENDATIONS TO DISMISS FOR FAILURE TO IDENTIFY PROPER DEFENDANT FOURTEEN DAY DEADLINE Defendant. 16 17 18 Plaintiff is a county jail inmate proceeding pro se and in forma pauperis in this civil 19 rights action brought pursuant to 42 U.S.C. § 1983. The action proceeds on Plaintiff’s 20 Eighth Amendment excessive force claim against Defendant Officer T. Singh. 21 On May 17, 2017, after the United States Marshal (“USM”) was twice 22 unsuccessful in locating and serving Defendant, the Court directed Plaintiff to, within 23 thirty days, provide the Court with more information to help locate Defendant. (ECF No. 24 31.) On June 28, 2017, Plaintiff was granted an additional sixty days to provide this 25 information. (ECF No. 33.) On September 8, 2017, Plaintiff sought another thirty day 26 extension, averring that the (unnamed) deputy who can provide Plaintiff Defendant 27 Singh’s “true” first name had not yet returned to her post. (ECF No. 34.) The Court 28 denied that motion. (ECF No. 35.) 1 The Court also directed Plaintiff to show cause within twenty-one days why 2 Defendant Singh, and thus the entire action, should not be dismissed based on inability 3 to effectuate service. (Id.) Plaintiff was warned that if he either failed to respond to the 4 Order or responded but failed to show cause, the undersigned would recommend the 5 action be dismissed without prejudice. More than twenty-one days have now passed and 6 Plaintiff has not responded to the Order to show cause, nor provided the Court more 7 information to help USM locate Defendant. 8 “If a defendant is not served within 90 days after the complaint is filed, the court-- 9 on motion or on its own after notice to the plaintiff--must dismiss the action without 10 prejudice against that defendant or order that service be made within a specified time.” 11 Fed. R. Civ. P. 4(m). Where a pro se plaintiff fails to provide the Marshal with accurate 12 and sufficient information to effect service of the summons and complaint, the Court’s 13 sua sponte dismissal of the unserved defendants is appropriate. Walker v. Sumner, 14 14 F.3d 1415, 1421-22 (9th Cir. 1994) (overruled on other grounds by Sandin v. Connor, 15 515 U.S. 472 (1995)) (where a pro se plaintiff fails to provide the Marshal with accurate 16 and sufficient information to effect service of the summons and complaint, the Court’s 17 sua sponte dismissal of the unserved defendants is appropriate.) 18 More than 90 days have passed since the complaint was filed and Plaintiff has 19 failed to provide the USM with sufficient information to effect service on Defendant. 20 Accordingly, IT IS HEREBY RECOMMENDED that this action be DISMISSED without 21 prejudice. 22 These Findings and Recommendations will be submitted to the United States 23 District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 24 636(b)(l). Within fourteen (14) days after being served with these Findings and 25 Recommendations, the parties may file written objections with the Court. The document 26 should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” 27 The parties are advised that failure to file objections within the specified time may result 28 2 1 in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 5 IT IS SO ORDERED. Dated: November 6, 2017 /s/ 6 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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