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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CRAIG SIMONSON,

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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.

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Plaintiff is a county jail inmate proceeding pro se and in forma pauperis in this civil

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rights action brought pursuant to 42 U.S.C. § 1983. The action proceeds on Plaintiff’s

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Eighth Amendment excessive force claim against Defendant Officer T. Singh.

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On May 17, 2017, after the United States Marshal (“USM”) was twice

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unsuccessful in locating and serving Defendant, the Court directed Plaintiff to, within

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thirty days, provide the Court with more information to help locate Defendant. (ECF No.

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31.) On June 28, 2017, Plaintiff was granted an additional sixty days to provide this

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information. (ECF No. 33.) On September 8, 2017, Plaintiff sought another thirty day

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extension, averring that the (unnamed) deputy who can provide Plaintiff Defendant

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Singh’s “true” first name had not yet returned to her post. (ECF No. 34.) The Court

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denied that motion. (ECF No. 35.)

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The Court also directed Plaintiff to show cause within twenty-one days why

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Defendant Singh, and thus the entire action, should not be dismissed based on inability

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to effectuate service. (Id.) Plaintiff was warned that if he either failed to respond to the

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Order or responded but failed to show cause, the undersigned would recommend the

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action be dismissed without prejudice. More than twenty-one days have now passed and

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Plaintiff has not responded to the Order to show cause, nor provided the Court more

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information to help USM locate Defendant.

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“If a defendant is not served within 90 days after the complaint is filed, the court--

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on motion or on its own after notice to the plaintiff--must dismiss the action without

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prejudice against that defendant or order that service be made within a specified time.”

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Fed. R. Civ. P. 4(m). Where a pro se plaintiff fails to provide the Marshal with accurate

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and sufficient information to effect service of the summons and complaint, the Court’s

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sua sponte dismissal of the unserved defendants is appropriate. Walker v. Sumner, 14

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F.3d 1415, 1421-22 (9th Cir. 1994) (overruled on other grounds by Sandin v. Connor,

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515 U.S. 472 (1995)) (where a pro se plaintiff fails to provide the Marshal with accurate

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and sufficient information to effect service of the summons and complaint, the Court’s

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sua sponte dismissal of the unserved defendants is appropriate.)

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More than 90 days have passed since the complaint was filed and Plaintiff has

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failed to provide the USM with sufficient information to effect service on Defendant.

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Accordingly, IT IS HEREBY RECOMMENDED that this action be DISMISSED without

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prejudice.

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These Findings and Recommendations will be submitted to the United States

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District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. §

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636(b)(l). Within fourteen (14) days after being served with these Findings and

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Recommendations, the parties may file written objections with the Court. The document

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should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.”

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

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

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

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IT IS SO ORDERED.
Dated:

November 6, 2017

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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