Puckett v. Dyer et al

Filing 53

ORDER ADOPTING 26 Findings and Recommendations signed by District Judge Kirk E. Sherriff on 11/25/2024. CASE CLOSED. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSEPH PUCKETT,

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Plaintiff,

Case No. 1:22-cv-00750-KES-HBK
ORDER ADOPTING AMENDED FINDINGS
AND RECOMMENDATIONS

v.
(Doc. 26)
JERRY DYER, et al.,
Defendants.

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Plaintiff Joseph Puckett, proceeding pro se, initiated this civil action on June 21, 2022.

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Doc. 1. The matter was referred to a United States magistrate judge pursuant to 28 U.S.C.

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§ 636(b)(1) and Local Rule 302.

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The Clerk of Court issued summonses for each defendant on August 26, 2022. Docs. 4, 5.

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On November 4, 2022, all the summonses were returned unexecuted. Docs. 8, 9. On

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November 18, 2022, the Court issued an order directing plaintiff to show cause why the Court

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should not dismiss this action for failure to timely serve all defendants as required by Rule 4(m)

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of the Federal Rules of Civil Procedure. Doc. 10 at 2. On December 13, 2022, the Court granted

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plaintiff an extension of time until December 30, 2022, to respond to the Order to Show Cause.

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Doc. 12. On January 12, 2023, the Court sua sponte granted plaintiff a further extension of time

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until February 15, 2023, to effectuate service. Doc. 14. In its order issued on January 12, 2023,

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the Court explicitly advised plaintiff how service must be completed, emphasizing that a party

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could not complete service. Id. at 1.

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On January 30, 2023, March 16, 2023, and March 20, 2023, plaintiff filed various

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affidavits reiterating his claims and stating he “personally” attempted to serve unspecified

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defendants at city hall and the police department. See generally Docs. 15, 16, 17. On March 30,

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2023, the Court issued an order to plaintiff advising him again that service must be completed in

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compliance with Rule 4(c)(2) and directing him to file proof of service of summonses for each

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defendant no later than April 21, 2023. Doc. 18 at 2. The Court further warned plaintiff that his

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failure to file proof of service by that date would result in a dismissal of defendants under Federal

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Rule of Civil Procedure 4(m) and dismissal of this action without prejudice. Id. On April 25,

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2023, the Court granted plaintiff one final extension of time in which to comply with Rule 4(m).

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Doc. 20. On May 30, 2023, plaintiff filed proofs of service purporting to reflect personal service

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of defendants. Doc. 21. Upon review of the proofs of service, the magistrate judge found them

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defective as not effectuating service on the parties in this case. Doc. 26. The assigned magistrate

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judge issued findings and recommendations on November 13, 2023 to dismiss this case for

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plaintiff’s failure to serve defendants under Rule 4(m). Id. In the findings and recommendations,

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the Court advised plaintiff that any objections were to be filed within 14 days of service of the

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Court’s order. Id. at 4-5.

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On April 22, 2024, more than five months since the findings and recommendations were

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issued, plaintiff filed a Motion for Extension of Time to respond to the findings and

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recommendations, which was denied as untimely. Doc. 29. Plaintiff thereafter filed a motion for

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an entry of default, Doc. 32, which was denied and stricken as no defendants had been properly

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served, Doc. 33.

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On November 15, 2024, nineteen summons were returned, of which five purported to be

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executed. Docs. 34–52. A review of the five summonses that purport to be “executed” reveals

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that they were all served only by inadequate substitute service, and that one of the summonses

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was for an individual who is not a party to the case. See docket; Docs. 38–41, 45. Plaintiff did

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not request and was not granted additional time to serve defendants. See docket. These filings do
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not establish that plaintiff has ever properly served any defendant, and the failure to do so timely

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warrants the dismissal of plaintiff’s case.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1), the Court has conducted a de

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novo review of this case. Having carefully reviewed the file, the Court finds the findings and

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recommendations are supported by the record and proper analysis.

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ACCORDINGLY, it is ORDERED:

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1. The findings and recommendations issued November 13, 2023, Doc. 26, are adopted

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in full;

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2. Plaintiff’s Complaint is DISMISSED without prejudice; and

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3. The Clerk of Court is directed to close this case.

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IT IS SO ORDERED.
Dated:

November 25, 2024
UNITED STATES DISTRICT JUDGE

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