Fordley v. Lizarraga et al

Filing 29

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 4/20/2017 RECOMMENDING that defendants Andrea and Moore be dismissed from this action without prejudice. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN F. FORDLEY,

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Plaintiff,

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No. 2:16-cv-1985-MCE-EFB P

v.

FINDINGS AND RECOMMENDATIONS

JOE LIZARRAGA, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. On September 30, 2016, the court directed the United States Marshal to serve

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plaintiff’s complaint on eight defendants. ECF No. 12. The United States Marshal returned

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process directed to defendant Moore, noting that “Officer Moore is deceased,” and to defendant

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Andrea, noting that “per CDCR, [there is] no officer Andrea.” ECF No. 14. Accordingly, on

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December 1, 2016, the court ordered plaintiff to provide new instructions for service of process

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upon defendants Moore and Andrea. ECF No. 20. The court warned plaintiff that failure to

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comply with the order or to show good cause for such failure would result in a recommendation

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that this action be dismissed as to defendants Moore and/or Andrea. Id. In his December 30,

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2016 response to the court’s order (ECF No. 23), plaintiff fails to provide new instructions for

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service or to demonstrate good cause for such failure. Therefore, the court recommends that

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defendants Andrea and Moore be dismissed from this action.

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With respect to defendant Andrea, plaintiff explains that he misspelled the defendant’s

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name and does not know the correct spelling. ECF No. 23 at 2. Plaintiff does not propose an

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alternate spelling, provide new instructions for service, or otherwise demonstrate good cause

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excusing his failures in this regard.

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With respect to defendant Moore, plaintiff argues that defendant Moore “should be held

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responsible” even though he died in “July 2016.”1 Id. at 1. Plaintiff does not, however, provide

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any additional information that would allow the United States Marshal to serve Moore (or

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Moore’s estate) with process.

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Plaintiff has had two opportunities to submit information about where defendants Andrea

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and Moore can be served, and has been warned that Rule 4(m) of the Federal Rules of Civil

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Procedure requires that service of process be effected within 120 days of the filing of the

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complaint absent a showing of good cause.2 ECF Nos. 7, 20. The time for serving defendants

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has expired and plaintiff has failed to demonstrate the requisite good cause to avoid dismissal

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under Rule 4(m).

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Accordingly, it is hereby RECOMMENDED that defendants Andrea and Moore be
dismissed from this action without prejudice. See Fed. R. Civ. P. 4(m).

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These findings and recommendations are submitted to the United States District Judge

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

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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.” Failure to file objections

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Moreover, if defendant Moore actually died in July 2016, prior to plaintiff’s
commencement of this action in August 2016, Moore would not be a proper party to this lawsuit,
and would be subject to dismissal on that basis. See Almeida v. Roberts, No. 15-cv-03319-JD,
2016 U.S. Dist. LEXIS 9792, at *6 (N.D. Cal. Jan. 26, 2016).
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The court notes, however, that Rule 4(m) now requires that service be completed within
90 days after filing of the complaint.
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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: April 20, 2017.

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