(PC) Rivera v. Davey ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICKY RIVERA, Case No. 1:16-cv-01817-AWI-BAM (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF 13 v. DEFENDANT CHAPOLEUN WITHOUT PREJUDICE FOR FAILURE TO SERVE 14 DAVEY, et al., FOURTEEN (14) DAY DEADLINE 15 Defendants. 16 17 Plaintiff Ricky Rivera (“Plaintiff”) is a state prisoner proceeding pro se and in forma 18 pauperis in this civil rights action under 42 U.S.C. § 1983. This action proceeds on Plaintiff’s 19 second amended complaint against Defendants Robicheaux, Chapoleun, and Crain for violations 20 of the Free Exercise Clause of the First Amendment and against Defendant Davey for a deficient 21 policy that violates the Free Exercise Clause of the First Amendment. 22 I. Service by the United States Marshal 23 On March 17, 2020, the Court issued an order directing the United States Marshals 24 Service to initiate service of process in this action upon Defendants Robicheaux, Chapoleun, 25 Crain, and Davey. (ECF No. 35.) On April 24, 2020, the United States Marshals Service filed a 26 return of service unexecuted as to Defendant Chapoleun. (ECF No. 39.) Based on the 27 information Plaintiff provided, specifically that Defendant S.M.V. Chapoleun was employed as 28 Chaplain at California State Prison, Corcoran (“CSP-Corcoran”) from June 2014 through 1 November or December 2015, the Marshal was informed by the Litigation Coordinator at CSP- 2 Corcoran that the Chaplin at the time of the events alleged in the complaint was Matthew 3 Vannissery, who resigned on April 24, 2016, and is no longer employed at CSP-Corcoran. The 4 Community Resource Manager at CSP-Corcoran indicated that the last she heard, Mr. Vannissery 5 was returning to his country. CSP-Corcoran therefore would not accept service and had no 6 forwarding address to provide. (Id.) 7 On April 29, 2020, the Court issued an order requiring Plaintiff to show cause why 8 Defendant Chapoleun should not be dismissed from this action, within thirty days of service. 9 (ECF No. 40.) Plaintiff filed a response on May 27, 2020. (ECF No. 44.) Plaintiff argued that 10 the only information provided by CSP-Corcoran pertained to Matthew Vannissery, while Plaintiff 11 was attempting to serve Defendant Chapoleun. (Id.) 12 On June 8, 2020, summons was returned unexecuted as to S.M.V. Chapoleun. (ECF No. 13 47.) The response states: “Per the Corcoran Community Records the Chaplin at the time was 14 Matthew Vannissery. He is no longer employed at COR, he resigned on 4/24/16. Records 15 indicate that he returned to his country, but he did not leave a physical address. CSP Corcoran 16 has no records of employing S.M.V. Chapoleun. CSP-Corcoran will not accept service for 17 S.M.V. Chapoleun.” (Id.) 18 II. Legal Standard 19 Federal Rule of Civil Procedure 4(m) provides as follows: 20 If a defendant is not served within 120 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the 21 action without prejudice against that defendant or order that service be made 22 within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. 23 24 Fed.R.Civ.P. 4(m). 25 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the 26 court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “[A]n incarcerated pro 27 se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the 28 summons and complaint, and . . . should not be penalized by having his or her action dismissed 1 for failure to effect service where the U.S. Marshal or the court clerk has failed to perform the 2 duties required of each of them . . . .” Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). “So 3 long as the prisoner has furnished the information necessary to identify the defendant, the 4 marshal’s failure to effect service is ‘automatically good cause . . . .’” Walker v. Sumner, 14 F.3d 5 1415, 1422 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472, 115 6 (1995). However, where a pro se plaintiff fails to provide the Marshal with accurate and 7 sufficient information to effect service of the summons and complaint, the Court’s sua sponte 8 dismissal of the unserved defendant is appropriate. Walker, 14 F.3d at 1421–22. 9 III. Discussion 10 The U.S. Marshal twice attempted to serve Defendant Chapoleun with the information 11 that Plaintiff provided. However, the Marshal was informed that CSP-Corcoran has no records of 12 any employees by the name of S.M.V. Chapoleun. Further, as Plaintiff indicated that S.M.V. 13 Chapoleun was working as the facility Chaplin at the time of the events in the complaint, CSP- 14 Corcoran instead provided information regarding Matthew Vannissery, who was the facility 15 Chaplin at that time. However, Mr. Vannissery is no longer employed at CSP-Corcoran, and the 16 institution does not have any forwarding information that would enable the Marshal to locate him 17 for service of process. 18 Plaintiff was afforded an opportunity to provide further information to locate Defendant 19 Chapoleun, but indicated that the only information provided—Defendant Chapoleun’s work 20 address—should be sufficient to effectuate service. (ECF No. 44, p. 2.) Further, Plaintiff argued 21 that as a pro se prisoner litigant, he has no other avenues to seek any information relating to the 22 whereabouts of Defendant Chapoleun, such as a home or employer address, or any other 23 information that would help the Marshal to effectuate service. (Id. at 4.) As such, it appears that 24 Plaintiff can provide no further information to assist the Marshal in effectuating service on 25 Defendant Chapoleun. As the Marshal has already twice attempted and failed to serve Defendant 26 Chapoleun with the information provided, the Court finds that Plaintiff has not provided 27 sufficient information to identify and locate Defendant Chapoleun for service of process. 28 /// 1 IV. Conclusion and Recommendation 2 Based on the foregoing, it is HEREBY RECOMMENDED that Defendant S.M.V. 3 Chapoleun be dismissed from this action, without prejudice, for failure to serve process pursuant 4 to Federal Rule of Civil Procedure 4(m). 5 These Findings and Recommendation will be submitted to the United States District Judge 6 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 7 (14) days after being served with these Findings and Recommendation, Plaintiff may file written 8 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 9 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 10 specified time may result in the waiver of the “right to challenge the magistrate’s factual 11 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 12 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 13 IT IS SO ORDERED. 14 15 Dated: June 8, 2020 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28