Stratford v. Brazelton, et al.

Filing 33

FINDINGS and RECOMMENDATIONS that this case be dismissed, without prejudice, under FRCP 4(m) signed by Magistrate Judge Helena M. Barch-Kuchta on 3/1/2021. Referred to Judge Dale A. Drozd. (Lundstrom, T)

Case 1:17-cv-00766-DAD-HBK Document 33 Filed 03/01/21 Page 1 of 3
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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ERIC STRATFORD,

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Plaintiff,
v.

No. 1:17-cv766-DAD-HBK (PC)
FINDINGS AND RECOMMENDATIONS THAT
THIS CASE BE DISMISSED, WITHOUT
PREJUDICE UNDER FED. R. CIV. P. 4(m)

ARNOLD SCHWARZENEGGER,

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Defendant.

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I.

BACKGROUND

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Plaintiff initiated this action on April 20, 201 while confined in a California institution.

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Doc. No. 1. Plaintiff voluntarily dismissed this action on November 13, 2017. Doc. Nos. 12, 13.

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Approximately one year later, Plaintiff moved to re-open the case. Doc. No. 14. The former

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magistrate judge granted Plaintiff’s motion and reopened the case on December 6, 2018. Doc.

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No. 16. After screening, Plaintiff was permitted to proceed on his Eight Amendment claim

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against Defendant Schwarzenegger and the court directed service on Defendant on May 18, 2020.

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Doc. Nos. 28, 26. On September 10, 2020, the United States Marshal notified the court that

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despite multiple attempts, they were unable to locate Defendant to effectuate service on him.

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Doc. No. 30. On September 11, 2020, the former magistrate judge issued an order affording

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Plaintiff an opportunity to show cause within 30 days why this action should not be dismissed

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under Federal Rule of Civil Procedure 4(m). Doc. No. 31. The order was not returned as
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Case 1:17-cv-00766-DAD-HBK Document 33 Filed 03/01/21 Page 2 of 3
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undeliverable. More than 30 days have passed, and Plaintiff has not responded to the order or

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otherwise sought an extension of time to respond to the order.

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II.

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Rule 4 governs service of process and requires a district court to dismiss a plaintiff’s case

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APPLICABLE LAW AND ANALYSIS

after notice if the defendant is not timely served, absent good cause. More specifically,

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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 or other 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) (emphasis added). The court must extend the time period to effectuate
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service upon a plaintiff showing good cause for defective service; but; if the plaintiff fails to show
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good cause, the court then has the discretion to dismiss the case without prejudice or to extend the
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time to effectuate service. See Hopson v. Nove Plaza, LLC, 2019 WL 1078351 *3 (E.D. Ca.
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March 7, 2019) (internal citations omitted). A plaintiff can show good cause by showing that the
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party to be served personally received actual notice of the lawsuit, that the defendant would not
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suffer prejudice, and that plaintiff would be severally prejudiced if his or her complaint were
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dismissed. Id. (citations omitted). If a plaintiff does not show good cause, then the district court
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may extend the time for service upon a showing of excusable neglect. Id. (citations omitted).
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Here, like Hopson, Plaintiff did not respond to the Court’s Show Cause Order. I cannot

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independently discern any reason based upon the record to find either good cause or excusable
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neglect to warrant extending time to effectuate service. Given that Plaintiff is no longer
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confined,1 his prior notice to voluntarily dismiss this action, his failure to respond to the Court’s

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September 11, 2020 Show Cause Order, I recommend dismissing this action without prejudice as
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to Defendant Schwarzenegger under Fed. R. Civ. P. 4(m).
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FINDINGS AND RECOMMENDATIONS:
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I recommend that:
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1. This case be dismissed, without prejudice, as to Defendant Schwarzenegger under Fed.
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See Notices of Change of Address filed on February 19, 2019 and August 20, 2019. Doc. Nos. 18-19.

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R. Civ. P. 4(m); and

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2. The Clerk of Court be directed to terminate any pending motions/deadlines and close
this case.
NOTICE TO PARTIES

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A party has fourteen days from this date to file written objections to the Findings and

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Recommendation’s factual findings and legal conclusions. See 28 U.S.C. § 636(b)(1)(B) and Rule

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304 of the Local Rules of Practice for the United States District Court, Eastern District of

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California. That document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” The district judge will review the findings and recommendations under 28

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U.S.C. § 636(b)(1)(C). A party’s failure to file written objections waives that party’s right to

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challenge on appeal any unobjected-to factual finding or legal conclusion the district judge adopts
from the Findings and Recommendation. See Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir.

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

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IT IS SO ORDERED.

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Dated:

March 1, 2021
HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE

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