(PC) Patton v. Loadholt et al

Filing 92

AMENDED FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 11/18/2020 RECOMMENDING defendant Sanchez be dismissed. Referred to Judge Kimberly J. Mueller; 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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ANTHONY L. PATTON,

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No. 2: 19-cv-0451 KJM KJN P

Plaintiff,
v.

AMENDED FINDINGS AND
RECOMMENDATIONS

F.N.P. LOADHOLT, et al.,
Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. On October 14, 2020, the undersigned recommended that defendant

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Sanchez be dismissed. (ECF No. 83.) On November 5, 2020, plaintiff filed objections to these

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findings and recommendations. (ECF No. 90.) The undersigned herein issues amended findings

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and recommendations addressing plaintiff’s November 5, 2020 objections.

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On October 9, 2019, the California Department of Corrections and Rehabilitation

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(“CDCR”) filed, under seal, a notice that CDCR would not waive service of defendant Sanchez,

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who is retired. (ECF No. 15.) CDCR provided defendant Sanchez’s last known address in this

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notice. (Id.) On February 24, 2020, the U.S. Marshal notified the court that service of defendant

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Sanchez at his last known address was returned unexecuted. (ECF No. 31).

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By order filed March 5, 2020, the undersigned ordered plaintiff to complete and return to
the court, within sixty days, the USM-285 form necessary to effect service on defendant Sanchez.
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(ECF No. 36.) That sixty-days period passed and plaintiff did not respond to the March 5, 2020

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order. Accordingly, on May 21, 2020, the undersigned recommended that defendant Sanchez be

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dismissed. (ECF No. 47.)

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On June 5, 2020, plaintiff filed objections to the May 21, 2020 findings and

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recommendations. (ECF No. 49.) Plaintiff alleged that on June 1, 2020, he submitted a request

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to the California Medical Board for information on defendant Sanchez’s location. Plaintiff

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requested ninety days to receive information from the California Medical Board and/or court

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assistance in locating defendant Sanchez.

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On June 19, 2020, the undersigned granted plaintiff sixty days to obtain information from

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the California Medical Board regarding defendant Sanchez’s location. (ECF No. 51.) Sixty days

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passed from June 19, 2020, and plaintiff failed to provide information for service of defendant

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Sanchez. Accordingly, on October 14, 2020, the undersigned recommended that defendant

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Sanchez be dismissed. (ECF No. 83.)

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On November 5, 2020, plaintiff filed objections to the October 14, 2020 findings and

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recommendations. (ECF No. 90.) In these objections, plaintiff alleges that California Medical

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Board failed to respond to his June 1, 2020 request for information regarding the location of

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defendant Sanchez.

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In cases involving a plaintiff proceeding in forma pauperis, the U.S. Marshal, upon order

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of the Court, shall serve the summons and the complaint. 28 U.S.C. § 1915(d); Fed. R. Civ. P.

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4(c)(3). “[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the

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U.S. Marshal for service of the summons and complaint and [he] should not be penalized by

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having his action dismissed for failure to effect service where the U.S. Marshal or the court clerk

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has failed to perform his duties.” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (internal

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quotations and citation omitted), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472

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(1995).

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“So long as the prisoner has furnished the information necessary to identify the defendant,

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the marshal’s failure to effect service is automatically good cause....” Walker, 14 F.3d at 1422

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(internal quotations and citation omitted). However, where a pro se plaintiff fails to provide the
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Marshal with accurate and sufficient information to effect service of the summons and complaint,

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the Court’s sua sponte dismissal of the unserved defendants is appropriate. Walker, 14 F.3d at

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1421-22.

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As discussed above, the U.S. Marshal attempted to serve defendant Sanchez at his last

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known address, provided by CDCR. Service at this address was returned unexecuted on February

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24, 2020. Although the court granted plaintiff an opportunity to obtain further information for

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service of defendant Sanchez, plaintiff did not act diligently in attempting to obtain this

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information. Plaintiff now claims that the California Medical Board failed to respond to his June

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1, 2020 request for information regarding the location of defendant Sanchez.

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The undersigned herein again recommends dismissal of defendant Sanchez based on

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plaintiff’s failure to provide sufficient information for service of this defendant. The undersigned

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also finds, based on the unsuccessful service of defendant Sanchez at the address provided by

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CDCR to the U.S. Marshal, it is unlikely that the California Medical Board would be able to

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provide plaintiff with information that would lead to the successful service of this defendant.

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Accordingly, IT IS HEREBY RECOMMENDED that defendant Sanchez be dismissed.

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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.” Any response to the

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

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

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

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Dated: November 18, 2020

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Patt451.dis
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