Davis v. Sacramento County Jail et al

Filing 57

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 5/7/2012 ORDERING the clerk to assign a district court judge to this case; and RECOMMENDING that defendant Woodward's 47 motion to dismiss be denied. Assigned and Referred to Judge William B. Shubb; Objections due within 21 days. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TERRENCE LAMONT DAVIS,
Plaintiff,

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No. CIV S-11-1027 CKD P

vs.

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SACRAMENTO COUNTY JAIL, et al.,

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Defendants.

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ORDER AND
FINDINGS AND RECOMMENDATIONS

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Plaintiff is a California prisoner proceeding pro se with an action for violation of

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civil rights under 42 U.S.C. § 1983. On November 21, 2011, the court ordered the U.S. Marshal

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to serve defendants Woodward and Hernandez with process. Hernandez was served and has

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answered. The Marshal attempted to serve Woodward at the Sacramento County Sheriff’s

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Department, and an employee of that office accepted service on behalf of Woodward. However,

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Woodward was not employed at the Sheriff’s Department at the time service was accepted on his

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behalf so service was not valid. See Fed R. Civ. P. 4(e).

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The attorney appearing on behalf of defendant Woodward argues that Woodward

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should be dismissed pursuant to Federal Rule of Civil Procedure 4(e) because process was not

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served within 120 days of the date plaintiff filed his complaint. However, Rule 4(e) also

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indicates dismissal is not warranted if there is good cause for failure to serve within 120 days.

As an incarcerated litigant, any pleadings filed by plaintiff are subject to the

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screening requirements found in 28 U.S.C. § 1915A(a). As a litigant proceeding in forma

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pauperis, plaintiff is entitled to have the U.S. Marshal serve his complaint. Most of the delay in

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serving defendant Woodward is attributable to the court’s screening process and the Marshal’s

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service process. Because the delay in serving defendant Woodward, for the most part, has not

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been caused by plaintiff, dismissal under Rule 4(e) is not warranted.
For these reasons, the court will recommend that defendant Woodward’s motion

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to dismiss be denied.
Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court assign a

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district court judge to this case; and
IT IS HEREBY RECOMMENDED that defendant Woodward’s April 2, 2012

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motion to dismiss be denied.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-

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one days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served and filed within fourteen days after service of the objections. The parties are

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advised that failure to file objections within the specified time may waive the right to appeal the

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District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: May 7, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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davi1027.57