Fletcher v. Quin et al

Filing 26

ORDER Adopting 25 Report and Recommendation: Granting 22 Defendants' Motion to Dismiss; and Extending the Time to Effect Service. Plaintiff must file any amended complaint, with additional allegations as to Defendants Galvan and Quinn, within sixty days from the date of this order. The Court grants Plaintiff an additional ninety (90) days to serve the First Amended Complaint on the Defendants who never received service and Order the Deputy Attorney General contact the litigation coordinator at RJD to attempt to identify the remaining, unserved defendants. Signed by Judge Gonzalo P. Curiel on 3/3/17. (All non-registered users served via U.S. Mail Service)(dlg)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 GREGORY L. FLETCHER C-41111, 15 16 17 ORDER ADOPTING REPORT AND RECOMMENDATION: Plaintiff, 13 14 Case No.: 3:15-cv-02156-GPC-NLS v. [Dkt. No. 25] C/O QUIN; C/O LOPEZ; SERGEANT STRICLAND; C/O ROMERO; C/O GALVAN; C/O GRISSON; C/O SORRANNO; CAPTAIN SANCHEZ, (1) GRANTING DEFENDANTS’ MOTION TO DISMISS; Defendants. 18 [Dkt. No. 22] 19 (2) EXTENDING THE TIME TO EFFECT SERVICE UNDER FED R. CIV. P. 4(m) 20 21 22 INTRODUCTION 23 Plaintiff Gregory Fletcher, an inmate proceeding pro se and in forma pauperis, 24 filed this civil rights action pursuant to 42 U.S.C. § 1983. Defendants G. Galvan 25 (“Galvan”) and F. Quinn1 (“Quinn”) filed a Motion to Dismiss under Fed. R. Civ. P. 26 27 The Court observes that Defendant Quinn is also referred to as “Quin” in the case caption and in Plaintiff’s submissions to the Court. 1 28 1 3:15-cv-02156-GPC-NLS 1 12(b)(6).2 Plaintiff did not file an Opposition. Pursuant to 28 U.S.C. § 636(b)(1), United 2 States Magistrate Judge Nita L. Stormes filed a Report and Recommendation granting 3 Defendants’ motion to dismiss with leave to amend and granting Plaintiff an extension of 4 time to effect service. Neither party filed an objection to the Report and 5 Recommendation. Based on the reasoning below, the Court ADOPTS the Magistrate Judge’s Report 6 7 and Recommendation. 8 PROCEDURAL BACKGROUND 9 On September 24, 2015, Plaintiff filed a complaint against a number of prison 10 officials employed at the Richard J. Donovan Correctional Facility (“RJD”) in San Diego, 11 California. Dkt. No. 1. On October 26, 2015, the Court dismissed the complaint without 12 prejudice for failure to pay filing fees. Dkt. No. 4. On December 8, 2015, Plaintiff filed 13 a first amended complaint (“FAC”), and on December 28, 2015, Plaintiff filed a motion 14 to proceed in forma pauperis. Dkt. No. 6 & 8. The Court granted Plaintiff’s motion to 15 proceed in forma pauperis and directed the U.S. Marshal to effect service on Plaintiff’s 16 behalf. Dkt. No. 11. 17 The FAC alleges that Defendants violated Plaintiff’s (1) Eighth Amendment right 18 to be free from cruel and unusual punishment and (2) First Amendment rights to freedom 19 of association, free speech, and freedom of religion. FAC, Dkt. No. 6. On June 20, 2016, 20 Defendants filed a motion to dismiss Defendants Galvan and Quinn. Dkt. No. 22. 21 Plaintiff filed no opposition. On July 7, 2016, Magistrate Judge Stormes filed a Report 22 and Recommendation granting Defendants’ motion with leave to amend. Report and 23 Recommendation (R&R), Dkt. No. 25. The Report and Recommendation also granted 24 Plaintiff an extension of time to effect service as a number of the individuals identified as 25 defendants have yet to receive service. 26 27 Hereafter, all references to “Defendants” will refer solely to Galvan and Quinn as they are the only Defendants who moved to dismiss. 2 28 2 3:15-cv-02156-GPC-NLS 1 STANDARD OF REVIEW 2 In reviewing a Magistrate Judge’s Report and Recommendation, “[a] judge of the 3 court shall make a de novo determination of those portions of the report . . . to which 4 objection is made.” 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b); United States 5 v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). However, in the absence of timely 6 objection, “the court need only satisfy itself that there is no clear error on the face of the 7 record in order to accept the recommendation.” Fed. R. Civ. P. 72 advisory committee’s 8 notes. When no objections are filed, a district court may assume the correctness of the 9 magistrate judge’s findings and recommendations, and decide the motion on the 10 applicable law. Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974); Johnson 11 v. Nelson, 142 F. Supp. 2d 1215, 1217 (S.D. Cal. 2001). 12 13 FACTUAL ALLEGATIONS Plaintiff met with a woman from the Attorney General’s Office on September 9, 14 2014. FAC, Dkt. No. 6 at 3. Later that day an unidentified inmate told Officer Romero, 15 a correctional officer, that Plaintiff had spoken to the Attorney General’s Office about the 16 inmate and Romero. Id. At an undisclosed later time, Romero pushed Plaintiff in his 17 chest seven to eight times. Id. Thereafter, when Plaintiff returned to his cell, he noticed 18 that his space was “tore up.” Id. He attempted to leave his unit and to speak with a 19 superior about what had happened, but Officer Grisson, also a correctional officer, 20 blocked him from doing so. Id. At that point, Officer Romero shoved Plaintiff back into 21 his cell and punched Plaintiff in his chest. Id. Romero punched Plaintiff so hard that he 22 re-broke his thumb trying to catch his fall. Id. Plaintiff then asked Officers Grisson and 23 Romero for medical help, but they refused. Id. (“I told c/o Romero and c/o Grisson that 24 I need medical help, they told me, that they didn’t care if I died and that I will not get no 25 help”). The officers then proceeded to tell Plaintiff that he did not know who he was 26 “messing” with and that “no-one [sic] mess with him, Grisson, Galvan, Sorreano.” Id. 27 According to Plaintiff, all of these officers were part of the “Greenwall Officer Mafia 28 3 3:15-cv-02156-GPC-NLS 1 Group” and were dangerous, corrupt, and responsible for covering up murders, beatings, 2 and more. Id. 3 On September 5, 2015, Plaintiff had an encounter with Officer Lopez, another 4 correctional officer. Id. at 4. Allegedly, Lopez “set [Plaintiff] up with morphine pills” 5 and, at some point, had Plaintiff undress and bend over for Lopez. Id. Lopez then placed 6 his hands on Plaintiff’s waist and said “um, that’s nice.” Id. Lopez then began to stalk 7 Plaintiff for months, sexually harass, sexually assault, and sexually batter him. Id. At 8 one point Plaintiff told Officer Lopez that his hands, feet, and back were hurting badly, 9 but Lopez refused to provide Plaintiff with any medical attention. Id. Officer Lopez told 10 medical staff that they should “let him [Plaintiff] suffer, he anit [sic] shit, we want him 11 dead and we will get him one day, he will died [sic], neglect all his medical care.” Id. 12 Lopez then proceeded to get Officer Stricland, also a correctional officer, involved in the 13 dispute by asking him (Stricland) to “back him [Lopez] up” by writing a memo. Id. 14 Finally, at an undisclosed time, Plaintiff states that Captain Sanchez, another 15 correctional officer, locked him up for no reason and verbally abused him in order to 16 “keep [him] from talking to anyone.” Id. at 5. Lopez allegedly told Plaintiff that she did 17 not care about his religion and that he did not have the right to speak. Id. Plaintiff 18 alleged that Lopez said these things because he filed a writ of habeas corpus with the 19 “U.S. State Supreme Court” that included allegations concerning conspiracy to commit 20 murder, killings, set ups, and sexual quid pro quo. See id. Plaintiff goes on to add that 21 Captain Sanchez, Lieutenant Williams, and Officer Quinn “all wanted [him] dead” and 22 that Captain Sanchez wanted someone to set Plaintiff up because she is corrupt and part 23 of the RJD Greenwall Officer Mafia Group. See id. 24 25 LEGAL STANDARD Every complaint must contain “a short and plain statement of the claim showing 26 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Accordingly, prior to filing 27 a responsive pleading, a party may request by motion that the court dismiss an opposing 28 party’s complaint because it failed “to state a claim upon which relief can be granted.” 4 3:15-cv-02156-GPC-NLS 1 Fed R. Civ. P. 12(b)(6). In order “[t]o survive a motion to dismiss, a complaint must 2 contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is 3 plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic 4 Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Complaints do “not require ‘detailed 5 factual allegations,’” but must contain more than “[t]hreadbare recitals of the elements of 6 a cause of action, supported by mere conclusory statements” to survive a motion to 7 dismiss. Ashcroft, 556 U.S. at 678. “Determining whether a complaint states a plausible 8 claim for relief . . . [is] a context-specific task that requires the reviewing court to draw 9 on its judicial experience and common sense.” Id. at 679. If the court can only infer “the 10 mere possibility of misconduct” from the pleaded facts, the complaint falls short of 11 meeting the plausibility standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 12 969 (2009) (“[T]o survive a motion to dismiss, the non-conclusory ‘factual content,’ and 13 reasonable inferences from that content, must be plausibly suggestive of a claim entitling 14 the plaintiff to relief.”) 15 As Plaintiff is an inmate proceeding pro se, “his complaint must be held to less 16 stringent standards than formal pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 17 338, 342 (9th Cir. 2010) (internal quotations omitted). Courts, therefore, must “construe 18 the pleadings [of pro se litigants ] liberally.” Id. Nonetheless, “vague and conclusory 19 allegations of official participation in civil rights violations are not sufficient to state a 20 claim.” Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). The Plaintiff must still 21 plead at least “enough facts to state a claim to relief that is plausible on its face.” Hebbe, 22 627 F.3d at 342. 23 DISCUSSION 24 Defendants Quinn and Galvan argue that they should be dismissed from Plaintiff’s 25 suit because the FAC does not allege that either of them were personally involved in any 26 of the events that allegedly violated Plaintiff’s constitutional rights. See generally, Dkt. 27 No. 22-1 at 4. The Report and Recommendation agreed and concluded that Plaintiff’s 28 FAC failed to state a cause of action against either Defendant. See generally Dkt. No. 25. 5 3:15-cv-02156-GPC-NLS 1 After having reviewed the Magistrate Judge’s proposed findings and conclusions, the 2 Court agrees that Defendants’ motion to dismiss should be granted as to Quinn and 3 Galvan because Plaintiff has failed to state an Eighth or First Amendment claim against 4 either Defendant. 5 6 A. Eighth Amendment Violation under § 1983 An official that “subjects, or causes to be subjected, any citizen of the United 7 States . . . to the deprivation of any rights, privileges, or immunities secured by the 8 Constitution” is personally liable for that violation. 42 U.S.C. § 1983. Because “[b]eing 9 violently assaulted in prison is simply not part of the penalty that criminal offenders pay 10 for their offenses against society,” “[a] prison official’s ‘deliberate indifference’ to a 11 substantial risk of serious harm to an inmate violates the Eighth Amendment.” Farmer v. 12 Brennan, 511 U.S. 825, 828, 834 (1994) (internal quotations omitted). Any prisoner 13 challenging official conduct, therefore, must satisfy two requirements: (1) that the 14 deprivation suffered is objectively, sufficiently serious and (2) that the official has a 15 sufficiently culpable state of mind to implicate the Eighth Amendment’s protection 16 against the “unnecessary and wanton infliction of pain.” Id. at 834. Prison officials act 17 with “deliberate indifference” if they act, or fail to act, despite knowing that a substantial 18 risk of serious harm threatens the plaintiff-inmate. Id. at 841; see also Solis v. Cnty. of 19 Los Angeles, 514 F.3d 946, 957 (9th Cir. 2008). 20 Only “deliberate indifference” that actually causes an inmate’s injuries is 21 actionable under § 1983. See Clem v. Lomeli, 566 F.3d 1177, 1182 (9th Cir. 2009) 22 “Personal participation by the prison official” in the challenged event is one way to 23 establish that an official subjected a prisoner to a deprivation of their rights. Taylor v. 24 List, 880 F.2d 1040, 1045 (9th Cir. 1989)). Additionally, a plaintiff can also establish 25 causation by showing that the defendant “set[ ] in motion a series of acts by others which 26 the actor knows or reasonably should know would cause others to inflict the 27 constitutional injury.” See Dahlia v. Rodriquez, 735 F.3d 1060, 1078 n.22 (9th Cir. 28 2013) (internal citations omitted). 6 3:15-cv-02156-GPC-NLS 1 1. Analysis 2 The FAC fails to state an Eighth Amendment claim against Galvan or Quinn 3 because Plaintiff has failed to demonstrate that either Defendant acted with “deliberate 4 indifference” to Plaintiff’s medical needs, as is required under the second prong of the 5 Farmer test, or that the Defendant’s actions or failures to act caused his injuries.5 As the 6 Report and Recommendation discussed, the FAC does not set forth any factual 7 allegations from which the Court can reasonably infer that either Defendant acted with 8 deliberate indifference to Plaintiff’s medical needs. 9 Plaintiff’s only allegations against Officer Galvan are (1) that Officer Romero told 10 Plaintiff that he should not mess with Officer Galvan, among others, and (2) that Officer 11 Galvan is part of the “Greenwall Officer Mafia Group,” which is a dangerous and corrupt 12 group that has covered up murders, beatings, and other crimes. See FAC, Dkt. No. 6 at 3. 13 The Court agrees with the Magistrate Judge that these conclusory allegations regarding 14 Galvan’s allegiances, corruption, and participation in the Greenwall Officer Mafia Group, 15 “without further factual basis is insufficient to state a claim for relief” under the standards 16 of Ashcroft and Twombly. R&R, Dkt. No. 25 at 5. The FAC is entirely devoid of any 17 allegations showing that Officer Galvan personally participated in any assault upon 18 Plaintiff or that he had knowledge that there was any risk of substantial harm to Plaintiff. 19 The Court further notes that it is also not enough to simply assert that Officer Galvan is a 20 member of a group that may have acted with deliberate indifference towards Plaintiff, 21 because group liability is an improper alternative ground for liability. See Chuman v. 22 Wright, 76 F.3d 292, 295 (9th Cir. 1996) (finding that a team effort theory of liability is 23 improper because the it “allows the jury to lump all the defendants together, rather than 24 require it to base each individual's liability on his own conduct.”); see also Leer v. 25 26 If taken as true, Plaintiff’s allegations would arguably be sufficient to demonstrate that he suffered an objectively serious injury under the first prong of Farmer. However, because Plaintiff’s claims are insufficient under the second prong of Farmer and to demonstrate causation, the Court need not address this point. 5 27 28 7 3:15-cv-02156-GPC-NLS 1 Murphy, 844 F.2d 628, 634 (9th Cir. 1988) (“the prisoner must set forth specific facts as 2 to each individual defendant’s deliberate indifference.”). Accordingly, the Court 3 concludes that Plaintiff has failed to state an Eighth Amendment failure-to-protect claim 4 against Defendant Galvan. 5 Plaintiff’s allegations against Officer Quinn are similarly insufficient to state a 6 claim for relief. The FAC alleges that Officer Quinn, along with Captain Sanchez, 7 Lieutenant Williams, wanted him dead. FAC, Dkt. No. 6 at 5. Yet threats alone do not 8 violate the Eighth Amendment. See Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) 9 (“We find no case that squarely holds a threat to do an act prohibited by the Constitution 10 is equivalent to doing the act itself”); see also Babcock v. Clarke, 373 F. App’x 720, 722 11 (9th Cir. 2010). Rather, the official must actually participate in, or “set[ ] in motion a 12 series of acts by others” that leads to, the act that violates the prisoner’s Eighth 13 Amendment rights. See Dahlia, 735 F.3d at 1078. Plaintiff, however, has failed to allege 14 that Quinn was personally involved in any deprivation of Plaintiff’s rights or that he had 15 knowledge of any substantial risk of harm that Plaintiff faced. Accordingly, Plaintiff has 16 failed to state a cognizable Eighth Amendment claim against Defendant Quinn. 17 B. First Amendment Violation under § 1983. 18 1. Freedom of Speech 19 In order to prove a retaliation claim in the prison context, a Plaintiff must 20 demonstrate that (1) a state actor took adverse action against him or her (2) because of (3) 21 that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of 22 his First Amendment rights and (5) the action did not reasonably advance a legitimate 23 correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). At the 24 pleading stage, the Plaintiff is not required to “demonstrate a total chilling of his First 25 Amendment rights to file grievances and to pursue civil rights litigation in order to 26 perfect a retaliation claim.” Id. at 568 (emphasis omitted). Rather, he only has to “show 27 that the defendant ‘intended to interfere’ with the plaintiff’s First Amendment rights.” 28 Ariz. Students’ Ass’n v. Ariz. Bd. of Regents, 824 F.3d 858, 867 (9th Cir. 2016). 8 3:15-cv-02156-GPC-NLS 1 As the Magistrate Judge noted, it is not clear from the face of the complaint 2 whether Plaintiff is asserting a First Amendment claim against Quinn.6 This lack of 3 clarity prevents the Court from concluding that Plaintiff’s allegations state a claim against 4 Defendant Quinn. Plaintiff alleged that Captain Sanchez locked him up and told him not 5 to speak to anyone “all because, [he] sent the U.S. State Supreme Court a writ of habeas 6 corpus.” FAC, Dkt. No. 6 at 5. By filing a writ of habeas corpus with the “U.S. State 7 Supreme Court,” Plaintiff arguably engaged in protected conduct. The FAC, however, 8 fails to establish any of the remaining elements of a retaliation claim as to Quinn. In 9 order to state a claim against Quinn, Plaintiff had to demonstrate that Quinn took adverse 10 action against him, because of that protected conduct, without a legitimate correctional 11 goal, and with the intention of interfering with Plaintiff’s First Amendment rights. Yet 12 the only allegation lodged against Officer Quinn is that he “wanted [Plaintiff] dead.” Id. 13 Even recognizing that “the mere threat of harm can be an adverse action, regardless of 14 whether it is carried out because the threat itself can have a chilling effect,” Brodheim v. 15 Cry, 584 F.3d 1262, 1270 (9th Cir. 2009) (emphasis added), Plaintiff’s claim still fails. 16 The FAC offers no facts demonstrating that Quinn ever communicated any threat to 17 Plaintiff. Plaintiff has also failed to plead that Quinn made any such threat because 18 Plaintiff had filed as habeas petition or that Quinn made such a threat with the intention 19 of chilling his right to file a habeas petition or some other protected act. As such, even 20 construing the complaint liberally, the FAC does not contain enough facts for the Court 21 to conclude that there is a viable First Amendment retaliation claim against Quinn. 22 //// 23 //// 24 //// 25 26 6 27 28 There is no reasonable basis for arguing that Plaintiff has stated a First Amendment claim against Defendant Galvan, as Galvan’s name is not mentioned at all in Plaintiff’s First Amendment allegations. See FAC, Dkt. No. 6 at 5. Defendant Quinn, by contrast, is named in Count 3 of Plaintiff’s complaint, which addresses the First Amendment claims. 9 3:15-cv-02156-GPC-NLS 1 2. Right to free exercise & Right to freely associate 2 Plaintiff additionally alleges that Defendants violated his right to freely practice his 3 religion and freely associate.7 FAC, Dkt. No. 6 at 5. Inmates retain their First 4 Amendment right to freely exercise religion. Henderson v. Terhune, 379 F.3d 709, 712 5 (9th Cir. 2004). Inmates also retain the right to freely associate, though the right is 6 substantially curtailed for prisoners. Overton v. Bazzetta, 539 U.S. 126, 131 (2003) 7 (“Freedom of association is among those rights least compatible with incarceration”); 8 Dunn v. Castro, 621 F.3d 1196, 1201 (9th Cir. 2010) (“prisoners do not enjoy an 9 absolute right to receive visits while incarcerated.”). Here, however, Plaintiff has failed 10 to state any viable freedom of religion or freedom to associate claim against Quinn. 11 The only allegation speaking to these claims states that Captain Sanchez told Plaintiff 12 “that she will don’t care [sic] about my religion nor do I have the right to speak.” FAC, 13 Dkt. No. 6 at 5. This allegation, however, does not implicate Defendant Quinn in any 14 way. This allegation also fails to even indicate that any injury even occurred, as it is 15 unclear whether Plaintiff was actually prevented from practicing his religion or speaking 16 with others. Accordingly, Plaintiff has failed to state a plausible, cognizable violation of 17 Plaintiff’s right to exercise his religion or his right to freely associate. 18 C. Leave to Amend 19 The Magistrate Judge recommended granting Plaintiff leave to amend his 20 complaint, as it was not “absolutely clear” that the deficiencies of the complaint could not 21 be cured by amendment. R&R, Dkt. No. 25 at 9 (citing Lucas v. Dep’t of Corr., 66 F.3d 22 245, 248 (9th Cir. 1995)). The Court agrees. “The court should freely give leave [to 23 amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). The “rule favoring liberality 24 in amendments to pleadings is particularly important for the pro se litigant.” Lopez v. 25 26 7 27 28 Again, as was the case with the retaliation cause of action, it is unclear which individuals Plaintiff has implicated in these First Amendment claims besides for Captain Sanchez. See Dkt. No. 6 at 5. Because Defendant Quinn is named in count three of Plaintiff’s FAC, which addresses these religious and speech violations, the Court will address these claims as to him only. 10 3:15-cv-02156-GPC-NLS 1 Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (quotations omitted). Thus, when a pleading 2 can be cured by the allegations of other facts leave to amend is proper. Id. at 1127. The 3 Court finds that Plaintiff may be able to remedy the defects in his complaint if he offers 4 additional allegations as to Galvan and Quinn, connecting both officers to the Eighth and 5 First Amendment violations. Accordingly, the Court grants Plaintiff leave to amend his 6 allegations as those Defendants. 7 D. Extension of Time to Effect Service 8 On February 2, 2016, the Court approved Plaintiff’s petition to proceed in forma 9 pauperis and directed the U.S. Marshal to effect service of summons on the defendants. 10 Dkt. No. 11 at 5. To date, however, the only defendants who have been served are 11 Quinn, Galvan, and Sanchez. Dkt. Nos. 19-21. The U.S. Marshal was unable to serve 12 Grisson, Romero, Sorrano, Lopez, and Stricland/Stricklin8 because the RJD litigation 13 coordinator could not identify those individuals without their first initials. Dkt. Nos. 13- 14 18. The time allotted to serve those five defendants expired on or about May 3, 2016. Under Fed. R. Civ. P. 4(m), “[i]f a defendant is not served within 90 days after the 15 16 complaint is filed, the court . . . must dismiss the action without prejudice against that 17 defendant or order service be made within a specified time.” The Magistrate Judge took 18 note of this problem, and (1) recommended that the Court provide the Plaintiff with an 19 extension of time to serve the above-mentioned parties and (2) directed the Deputy 20 Attorney General assigned to the case to liaison with the RJD litigation coordinator in 21 order to provide the first initials of the unserved defendants to the U.S. Marshal. R&R, 22 Dkt. No. 25 at 10. 23 Rule 4(m) provides that a court may extend the time for service for an appropriate 24 period if the plaintiff shows good cause for the failure. Fed. R. Civ. P 4(m); cf. Efaw v. 25 Williams, 473 F.3d 1038, 1041 (9th Cir. 2007) (“District courts have broad discretion to 26 27 In a later submission filed with the Court, Plaintiff explained that “Stricklin” and “Strickland” are the same person. Dkt. No. 24 at 2. 8 28 11 3:15-cv-02156-GPC-NLS 1 extend time for service under Rule 4(m).”) Plaintiff filed a document with the Court 2 indicating that he did not provide the first initials of the various, un-served defendants 3 because “none of those officers would give me or tell me their badge numbers nor their 4 first initials.” Dkt. No. 24 at 2. He has since attempted to identify each unserved 5 defendant as best he could by providing, among other information, the buildings where 6 those individuals work and their respective titles. See generally id. Accordingly, the 7 Court finds that Plaintiff has demonstrated good cause for failing to effect service on 8 those individuals. 9 “Attorneys, as officers of the court, have a duty to cooperate with the court to 10 preserve and promote the efficient operation of our system of justice.” Chapman v. Pac. 11 Tel. & Tel. Co., 613 F.2d 193, 197 (9th Cir. 1979). Given Plaintiff’s good faith effort to 12 identify the defendants and in the interest of judicial efficiency, the Court orders the 13 Deputy Attorney General assigned to this case to contact the litigation coordinator at RJD 14 and provide the coordinator with the description and identifying information contained in 15 Plaintiff’s letter (see Dkt. No. 24), for purposes of identifying the first initial of the five 16 unserved defendants. In the event that the litigation coordinator is able to identify the 17 unserved defendants, the Court directs the Deputy Attorney General to provide the first 18 initials of the unserved defendants to the U.S. Marshal in a confidential memorandum. 19 The U.S. Marshal should then use that information to serve the summons and First 20 Amended Complaint on the unserved defendants that have been identified. 21 22 23 24 CONCLUSION Based on the above, the Court ADOPTS the Report and Recommendation of the Magistrate Judge, and: A. GRANTS Defendants’ motion to dismiss for failure to state a claim with leave 25 to amend. Plaintiff must file any amended complaint, with additional 26 allegations as to Defendants Galvan and Quinn, within sixty (60) days from the 27 date of this order. 28 12 3:15-cv-02156-GPC-NLS 1 B. GRANTS Plaintiff an additional ninety (90) days to serve the First Amended 2 Complaint on the Defendants who never received service under Fed. R. Civ. P. 3 4(m); and 4 C. ORDERS that the assigned Deputy Attorney General contact the litigation 5 coordinator at RJD to attempt to identify the remaining, unserved defendants 6 and take the additional steps set out above. 7 IT IS SO ORDERED. 8 9 Dated: March 3, 2017 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 3:15-cv-02156-GPC-NLS

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