Jacobsen v. Maldinado

Filing 24

ORDER directing Clerk of Court to randomly assign District Judge to action. FINDINGS and RECOMMENDATIONS to dismiss Doe Defendants from action without prejudice 22 signed by Magistrate Judge Barbara A. McAuliffe on 11/30/2017. Action assigned to and referred to District Judge Anthony W. Ishii. New case number is 1:17-cv-00101-AWI-BAM-(PC). Objections to F&R's due within 14-Days. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL JACOBSEN, 12 Plaintiff, 13 v. 14 MALDINADO, 15 Defendant. Case No. 1:17-cv-00101-BAM (PC) ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO ACTION FINDINGS AND RECOMMENDATIONS TO DISMISS DOE DEFENDANTS FROM ACTION WITHOUT PREJUDICE 16 (ECF No. 22) 17 FOURTEEN (14) DAY DEADLINE 18 19 Plaintiff Michael Jacobsen (“Plaintiff”) is a former state prisoner proceeding pro se and in 20 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to 21 magistrate judge jurisdiction. (ECF No. 4.) 22 I. Background 23 On June 8, 2017, the Court issued a screening order finding that Plaintiff had stated a 24 cognizable claim against Defendants Maldinado, Doe #1, Doe #2, and Doe #3 and directing 25 Plaintiff to provide the Court with written notice identifying Doe Defendants with enough 26 information to locate defendants for service of process. (ECF No. 8.) When Plaintiff failed to 27 provide such written notice, the Court issued an order requiring Plaintiff to show cause why Doe 28 Defendants should not be dismissed for failure to prosecute. (ECF No. 15.) Plaintiff was 1 1 explicitly warned that failure to comply with the Court’s order would result in dismissal of the 2 Doe Defendants from this action. (Id. at 2.) 3 In the meantime, Plaintiff filed a response to the Court’s order to show cause regarding 4 service of process on Defendant Maldinado. (ECF No. 17.) Pursuant to that submission, the 5 Court granted Plaintiff a final opportunity to file written notice identifying Doe Defendants or a 6 response stating why he was unable to do so. (ECF No. 19.) Plaintiff was again warned that 7 failure to comply with the Court’s order would result in dismissal of the Doe Defendants from 8 this action. (Id. at 4.) 9 On October 5, 2017, Plaintiff filed a response to the Court’s September 21, 2017 order to 10 show cause, requesting an extension of 60 to 90 days after the opening of discovery to submit the 11 names of the Doe Defendants. (ECF No. 21.) On October 6, 2017, the Court denied the request 12 and directed Plaintiff, within forty-five (45) days, to file either a motion to substitute the Doe 13 Defendants, or a status report explaining the actions he took to locate the names of Doe 14 Defendants. (ECF No. 22.) Plaintiff was again warned that failure to comply with the Court’s 15 order would result in dismissal of the Doe Defendants from this action. (Id. at 3.) 16 On October 25, 2017, Plaintiff filed a notice of change of address, dated October 31, 17 2017, indicating that he is no longer incarcerated. (ECF No. 23.) The deadline for Plaintiff’s 18 response to the Court’s October 6, 2017, order has expired. To date, Plaintiff has not otherwise 19 communicated with the Court or complied with the Court’s order. 20 II. 21 Pursuant to Federal Rule of Civil Procedure 4(m): 22 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. 23 24 Discussion 25 26 In cases involving a plaintiff proceeding in forma pauperis, a United States Marshal, upon 27 order of the court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “[A] 28 prisoner ‘is entitled to rely on the U.S. Marshal for service’ . . . as long as he or she ‘provide[s] 2 1 the necessary information to help effectuate service.’” Schrubb v. Lopez, 617 Fed. Appx. 832, 2 832 (9th Cir. 2015) (quoting Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990), abrogated on 3 other grounds by Sandin v. Connor, 515 U.S. 472 (1995)). “So long as the prisoner has furnished 4 the information necessary to identify the defendant, the marshal’s failure to effect service is 5 ‘automatically good cause . . . .’” Walker v. Sumner, 14 F.3d 1415, 1422 (quoting Sellers v. 6 United States, 902 F.2d 598, 603 (7th Cir.1990)), overruled on other grounds by Sandin, 515 U.S. 7 at 483–84. However, where a pro se plaintiff fails to provide the Marshal with accurate and 8 sufficient information to effect service of the summons and complaint, the Court’s sua sponte 9 dismissal of the unserved defendants is appropriate. Walker, 14 F.3d at 1421–22. 10 Plaintiff has been granted multiple opportunities to provide sufficient information to 11 identify the Doe Defendants so the United States Marshal may serve the summons and complaint. 12 Despite repeated warnings that failure to do so would result in dismissal of the Doe Defendants 13 from this action, Plaintiff has not complied with the Court’s orders. In addition, Plaintiff has 14 failed to set forth good cause for his failure to identify the Doe Defendants, and has failed to 15 provide any explanation detailing the efforts he has taken to locate the names of the Doe 16 Defendants. 17 III. 18 This Action proceeds on a claim for excessive force in violation of the Fourteenth 19 20 21 22 23 Order and Recommendation Amendment against Officer Maldinado. The Court HEREBY ORDERS the Clerk of the Court to randomly assign a district judge to this action. Further, the Court HEREBY RECOMMENDS that all Doe Defendants be dismissed from this action, without prejudice, pursuant to Federal Rule of Civil Procedure 4(m). 24 These Findings and Recommendations will be submitted to the United States District 25 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 26 fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may 27 file written objections with the Court. The document should be captioned “Objections to 28 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 3 1 objections within the specified time may result in the waiver of the “right to challenge the 2 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 3 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 5 6 IT IS SO ORDERED. Dated: /s/ Barbara November 30, 2017 A. McAuliffe _ 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 4

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