(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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY L. PATTON, 12 13 14 15 No. 2: 19-cv-0451 KJM KJN P Plaintiff, v. AMENDED FINDINGS AND RECOMMENDATIONS F.N.P. LOADHOLT, et al., Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. On October 14, 2020, the undersigned recommended that defendant 19 Sanchez be dismissed. (ECF No. 83.) On November 5, 2020, plaintiff filed objections to these 20 findings and recommendations. (ECF No. 90.) The undersigned herein issues amended findings 21 and recommendations addressing plaintiff’s November 5, 2020 objections. 22 On October 9, 2019, the California Department of Corrections and Rehabilitation 23 (“CDCR”) filed, under seal, a notice that CDCR would not waive service of defendant Sanchez, 24 who is retired. (ECF No. 15.) CDCR provided defendant Sanchez’s last known address in this 25 notice. (Id.) On February 24, 2020, the U.S. Marshal notified the court that service of defendant 26 Sanchez at his last known address was returned unexecuted. (ECF No. 31). 27 28 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. 1 1 (ECF No. 36.) That sixty-days period passed and plaintiff did not respond to the March 5, 2020 2 order. Accordingly, on May 21, 2020, the undersigned recommended that defendant Sanchez be 3 dismissed. (ECF No. 47.) 4 On June 5, 2020, plaintiff filed objections to the May 21, 2020 findings and 5 recommendations. (ECF No. 49.) Plaintiff alleged that on June 1, 2020, he submitted a request 6 to the California Medical Board for information on defendant Sanchez’s location. Plaintiff 7 requested ninety days to receive information from the California Medical Board and/or court 8 assistance in locating defendant Sanchez. 9 On June 19, 2020, the undersigned granted plaintiff sixty days to obtain information from 10 the California Medical Board regarding defendant Sanchez’s location. (ECF No. 51.) Sixty days 11 passed from June 19, 2020, and plaintiff failed to provide information for service of defendant 12 Sanchez. Accordingly, on October 14, 2020, the undersigned recommended that defendant 13 Sanchez be dismissed. (ECF No. 83.) 14 On November 5, 2020, plaintiff filed objections to the October 14, 2020 findings and 15 recommendations. (ECF No. 90.) In these objections, plaintiff alleges that California Medical 16 Board failed to respond to his June 1, 2020 request for information regarding the location of 17 defendant Sanchez. 18 In cases involving a plaintiff proceeding in forma pauperis, the U.S. Marshal, upon order 19 of the Court, shall serve the summons and the complaint. 28 U.S.C. § 1915(d); Fed. R. Civ. P. 20 4(c)(3). “[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the 21 U.S. Marshal for service of the summons and complaint and [he] should not be penalized by 22 having his action dismissed for failure to effect service where the U.S. Marshal or the court clerk 23 has failed to perform his duties.” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (internal 24 quotations and citation omitted), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 25 (1995). 26 “So long as the prisoner has furnished the information necessary to identify the defendant, 27 the marshal’s failure to effect service is automatically good cause....” Walker, 14 F.3d at 1422 28 (internal quotations and citation omitted). However, where a pro se plaintiff fails to provide the 2 1 Marshal with accurate and sufficient information to effect service of the summons and complaint, 2 the Court’s sua sponte dismissal of the unserved defendants is appropriate. Walker, 14 F.3d at 3 1421-22. 4 As discussed above, the U.S. Marshal attempted to serve defendant Sanchez at his last 5 known address, provided by CDCR. Service at this address was returned unexecuted on February 6 24, 2020. Although the court granted plaintiff an opportunity to obtain further information for 7 service of defendant Sanchez, plaintiff did not act diligently in attempting to obtain this 8 information. Plaintiff now claims that the California Medical Board failed to respond to his June 9 1, 2020 request for information regarding the location of defendant Sanchez. 10 The undersigned herein again recommends dismissal of defendant Sanchez based on 11 plaintiff’s failure to provide sufficient information for service of this defendant. The undersigned 12 also finds, based on the unsuccessful service of defendant Sanchez at the address provided by 13 CDCR to the U.S. Marshal, it is unlikely that the California Medical Board would be able to 14 provide plaintiff with information that would lead to the successful service of this defendant. 15 Accordingly, IT IS HEREBY RECOMMENDED that defendant Sanchez be dismissed. 16 These findings and recommendations are submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 18 after being served with these findings and recommendations, any party may file written 19 objections with the court and serve a copy on all parties. Such a document should be captioned 20 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 21 objections shall be filed and served within fourteen days after service of the objections. The 22 parties are advised that failure to file objections within the specified time may waive the right to 23 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 24 Dated: November 18, 2020 25 26 27 Patt451.dis 28 3

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