Puckett v. Dyer et al

Filing 26

FINDINGS and RECOMMENDATIONS to Dismiss Defendants and Case Under Fed.R.Civ.P 4(m), signed by Magistrate Judge Helena M. Barch-Kuchta on 11/13/2023. Objections to F&R due within FOURTEEN DAYS. (Marrujo, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSEPH PUCKETT, 12 13 14 15 Plaintiff, v. JERRY DYER, et al., Case No. 1:22-cv-750-ADA-HBK FINDINGS AND RECOMMENDATIONS TO DISMISS DEFENDANTS AND CASE UNDER FED. R. CIV. P 4(m) 14-DAY OBJECTION PERIOD Defendants. 16 17 18 This matter comes before the Court upon periodic review. For the reasons set forth 19 below, the undersigned recommends the case be dismissed pursuant to Rule 4(m) of the Federal 20 Rules of Civil Procedure for failure to effectuate service upon Defendants. 21 22 BACKGROUND Plaintiff Joseph Puckett, proceeding pro se, initiated this civil action on June 21, 2022. 23 (Doc. No. 1, “Complaint”). Plaintiff paid the filing fee on July 26, 2022. The Complaint names 24 the following defendants: (1) Jerry Dyer, Chief of Police, (2) Paco Balderrama, (3) Judge 25 Kapitan, (4) Fresno City Counsel, (5) S. Calvert, Badge No. 1624, (6) P. Little, Badge No. 9595, 26 (7) G. Gardner, Badge No. 1614, (8) Sergeant James Rosett, (9) Christopher Tekemoto, (10) 27 Jacob Adney, and (11) Mathew Besayeu. (Id. at 1-2). 28 The Clerk of Court issued summonses for each Defendant on August 26, 2022. (Doc. 1 Nos. 5, 6). On November 4, 2022, all the summonses were returned unexecuted. (Doc. Nos. 8, 2 9). On November 18, 2022, the Court issued an order directing Plaintiff to show cause why the 3 Court should not dismiss this action for failure to timely serve all Defendants as required by Rule 4 4(m) of the Federal Rules of Civil Procedure. (Id. at 2 ¶ 2). On December 13, 2022, the Court 5 granted Plaintiff an extension of time until December 30, 2022, to respond to the Order to Show 6 Cause. (Doc. No. 12). On January 12, 2023, the Court sua sponte granted Plaintiff a further 7 extension of time until February 15, 2023, to effectuate service. (Doc. No. 14). In its order issued 8 on January 12, 2023, the Court explicitly advised Plaintiff how service must be completed, 9 emphasizing that a party could not complete service. (Id. at 1). 10 On January 30, 2023, March 16, 2023, and March 20, 2023, Plaintiff filed various 11 affidavits reiterating his claims and stating he “personally” attempted to serve unspecified 12 defendants at city hall and the police department. (See generally Docs. Nos. 15, 16, 17). On 13 March 30, 2023, the Court issued an order to Plaintiff advising him again that service must be 14 completed in compliance with Rule 4(c)(2) and directing him to file proof of service of 15 summonses for each defendant no later than April 21, 2023. (Doc. No. 18 at 2 ¶ 1). The Court 16 further warned Plaintiff that his failure to file proof of service by that date would result in a 17 dismissal of defendants under Federal Rule of Civil Procedure 4(m) and dismissal of this action 18 without prejudice. (Id. ¶ 2). On April 25, 2023, the Court granted Plaintiff one final extension of 19 time in which to comply with Rule 4(m). (Doc. No. 20). On May 30, 2023, Plaintiff filed proofs 20 of service purporting to reflect personal service of Defendants. (Doc. No. 21). 21 APPLICABLE LAW AND ANALYSIS 22 Plaintiffs in a federal civil case may serve individual defendants within a judicial district 23 of the United States by either: (1) following state law service requirements in the state where the 24 district court is located or where service is made; or (2) complying with any of the following 25 federal requirements: (A) “delivering a copy of the summons and of the complaint to the 26 individual personally;” (B) “leaving a copy of each at the individual’s dwelling or usual place of 27 abode with someone of suitable age and discretion who resides there;” or (C) “delivering a copy 28 of each to an agent authorized by appointment or by law to receive service of process.” Fed. R. 2 1 Civ. P. 4(e); see also, e.g., Cal. Civ. Proc. Code § 415.30 (listing the requirements for service by 2 mail under California law). If, however, a defendant is not served within ninety days of filing the 3 complaint, the court “on motion or on its own after notice to the plaintiff[,] must dismiss the 4 action without prejudice against that defendant or order that service be made within a specified 5 time.” Fed. R. Civ. P. 4(m). 6 Plaintiff was granted multiple extensions of time beyond the 90-day period of service of 7 process under Rule 4(m). He ultimately filed several documents purporting to demonstrate 8 service upon Defendants. (Doc. No. 21). Upon review of the proofs of service filed by Plaintiff 9 on May 30, 2023, however, the Court finds the proofs of service are defective. The first 10 document indicates that on May 26, 2023, a process server named Vicky Mabry served process 11 on the Fresno Police Department by serving Kim Dunn, Police Support Services Technician. The 12 proof of service indicates “Party to be Served: Fresno Police Department.” (Id. at 2). However, 13 while current and former employees of the Fresno Police Department are named in Plaintiff’s 14 Complaint, the Fresno Police Department is not a party to this action. Similarly, Plaintiff’s filing includes a proof of service indicating that Ms. Mabry served a 15 16 summons and complaint on the City of Fresno by serving Susan Mac, Deputy Clerk. (Id. at 3). 17 However, the City of Fresno is not a party to this action. Plaintiff also attaches another proof 18 service reflecting that a second process server, Viviana Lamas, served the City of Fresno on May 19 23, 2023, by serving Collette Dodd-Barrios. (Id. at 7-8). Plaintiff attaches a Proof of 20 Unsuccessful Service of the Chief of Police. (Id. at 9-11). 21 Plaintiff has not filed successful proofs of service as to any of the eleven named 22 Defendants in this action. The fact that Plaintiff served two of the institutions where some of the 23 Defendants now or formerly worked is insufficient to establish service. See, e.g., Alonso v. El 24 Centro Police Dep’t, 2023 WL 5490131, at *10 (S.D. Cal. Aug. 23, 2023) (recommending 25 dismissal of complaint under Rule 4(m) where Plaintiff served police department but not 26 individual officers), report and recommendation adopted, 2023 WL 6612496 (S.D. Cal. Oct. 10, 27 2023). 28 The Court therefore concludes that dismissal of all Defendants and this case without 3 1 prejudice pursuant to Rule 4(m) is appropriate. “Failure to follow technical requirements does 2 not warrant dismissal where ‘(a) the party that had to be served personally received actual notice, 3 (b) the defendants would suffer no prejudice from the defect in service, (c) there is a justifiable 4 excuse for failure to serve properly, and (d) the plaintiff would be severely prejudiced if his 5 complaint were dismissed.’” Johnson v. San Diego Metro. Transit Sys., 2008 WL 3411728, at *7 6 (S.D. Cal. Aug. 11, 2008) (quoting Borzeka v. Heckler, 739 F.2d 444, 447 (9th Cir. 1984)). 7 Here, the Court finds dismissal is warranted. There is no evidence that the individual 8 Defendants received actual notice. Plaintiff has not offered any justifiable excuse for his inability 9 to serve the parties in accordance with Rule 4 or state service procedures. Moreover, the Court 10 has provided specific guidance and afforded Plaintiff five extensions of time and nearly 12 11 months in which to effectuate service. (See docket). And while Plaintiff’s claims appear time 12 barred if he attempted to re-file this action, his Complaint appears to have been time-barred at the 13 time he commenced this action. See Butler v. Nat’l Cmty. Renaissance of California, 766 F.3d 14 1191, 1198 (9th Cir. 2014) (holding that Section 1983 claims use California's statute of 15 limitations for personal injury claims, which is two years); Braddy v. Drug Enforcement Agency, 16 464 F. Supp. 3d 1159, 1165 (C.D. Cal. 2020) (Fourth Amendment illegal search and seizure claim 17 accrues at the time of the search and seizure).1 18 Accordingly, it is RECOMMENDED: 19 All Defendants be dismissed from this action for Plaintiff’s failure to effectuate service in 20 compliance with Rule 4(m); and this case be dismissed without prejudice. 21 NOTICE TO PARTIES 22 23 These findings and recommendations will be submitted to the United States district judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 24 25 26 27 28 1 Plaintiff initiated this action on June 21, 2022. (Doc. No. 1). Liberally construed the Complaint alleges a Fourth Amendment search and seizure claim stemming from a search warrant executed on May 25, 2017. Because Plaintiff paid the filing fee, the Court did not conduct a screening of the Complaint under 28 U.S.C. §1915(e)(2). Further, the statute of limitation is an affirmative defense and arguably may be subject to equitable tolling. While recommending dismissal without prejudice consistent with Rule 4(m), the undersigned cautions Plaintiff before refiling and repaying the filing fee that his action facially appears to be barred by the applicable two-year statute of limitations. 4 1 days after being served with these findings and recommendations, a party may file written 2 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 3 Findings and Recommendations.” Parties are advised that failure to file objections within the 4 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 5 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 6 7 8 Dated: November 13, 2023 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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