(PC) Alvarez v. Silva ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOEY ALVAREZ, ) Case No.: 1:19-cv-00003-DAD-SAB (PC) ) 12 Plaintiff, ) ) FINDINGS AND RECOMMENDATION 13 v. ) RECOMMENDING DISMISSAL OF DEFENDANT RODRIGUEZ PURSUANT TO 14 SILVA, et.al., ) RULE 4(M) ) 15 Defendants. ) [ECF No. 53] ) 16 ) 17 Plaintiff Joey Alvarez is appearing pro se and in forma pauperis in this civil rights action 18 pursuant to 42 U.S.C. § 1983. 19 I. 20 DISCUSSION 21 On July 10, 2019, the Court found that service of Plaintiff’s second amended complaint was 22 appropriate as to Defendants Silva and Rodriguez for excessive force in violation of the Eighth 23 amendment. (ECF No. 21.) 24 On July 31, 2019, pursuant to the E-Service pilot program for civil rights cases in the Eastern 25 District of California, the California Department of Corrections and Rehabilitation returned a notice of 26 intent to not waive personal service on Defendant Angelina because there was no such employee with 27 this name in the mailroom. Therefore, service was forwarded to the United States Marshals Service. 28 1 On November 1, 2019, the United States Marshal returned the USM-285 form as unexecuted 2 with a notation that California State Prison, Corcoran cannot accept service because “per the 3 assignment office, at CSP-Corcoran, there was no staff by the name of Rodriguez on the transport on 4 the date provided.” (ECF No. 32.) 5 On November 7, 2019, the Court issued an order directing Plaintiff to provide further 6 information regarding the identify of Defendant in order to effectuate service of the summons and 7 complaint. (ECF No. 33.) Plaintiff filed a response on November 18, 2019, and provided additional 8 information relating to Defendant Rodriguez. (ECF No. 34.) 9 On November 21, 2019, the Court issued a second order directing service by the United States 10 Marshal on Defendant Rodriguez with the additional information provided by Plaintiff. (ECF No. 35.) 11 On December 2, 2019, the summons was returned unexecuted, with a notation that “Per Lt. 12 Thomas at King Co. Jail: ‘I have reviewed the attachments that you sent me (court orders and 13 complaint) as well as our records for that day and do not show anyone by the name of Rodriguez 14 working in that area of the jail at the date and time the incident occurred. The booking area also does 15 not keep logs of agencies who enter and exit the booking area.’” (ECF No. 36.) 16 On December 4, 2019, the Court issued an order to show cause why Defendant Rodriguez 17 should not be dismissed pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. (ECF No. 37.) 18 Plaintiff filed a response to the order to show cause on December 26, 2019. (ECF No. 40.) 19 On January 8, 2020, the Court issued a third order directing service on Defendant Rodriguez 20 with the additional information and documentation provided by Plaintiff in his response to the order to 21 show cause. (ECF No. 41.) 22 On February 18, 2020, the summons was returned unexecuted, which noted the following: 23 2/13/20 – Per Lt. Thomas “I reviewed my staff’s incident reports again and have no further information regarding an officer Rodriguez. It appears that inmate Alvarez is referring to the 24 CDC staff who transported him to the jail the day the assault took place. Since they are not Sheriff’s office employees, I have no way of validating or providing him with what he is 25 requesting. This continued request for CDC staff information I would think should be made to 26 the institution in question where inmate Alvarez was transferred from. Due to the incident resulting in a CDCR staff being assaulted, Department of Corrections leads the investigation 27 not the Kings County Sheriff’s Office. 28 1 (ECF No. 47). 2 On February 20, 2020, the Court issued a second and final order to show cause why Defendant 3 Rodriguez should not be dismissed pursuant to Rule 4(m). 4 Plaintiff filed a response to the order on March 5, 2020. (ECF No. 52.) On March 10, 2020, 5 the Court discharged the order to show cause and granted Plaintiff sixty days to conduct discovery to 6 identify Defendant Rodriquez. (ECF No. 53.) Plaintiff has not responded to the Court’s March 10, 7 2020 order and the time to do so has expired. Plaintiff was advised that the failure to identify and 8 serve Defendant Rodriguez will result in dismissal of this Defendant, without prejudice. (Id.) 9 Rule 4(m) of the Federal Rules of Civil Procedure provides: 10 If a defendant is not served within 90 days after the complaint is filed, the court - on motion or on its own after notice to the plaintiff - must dismiss the action without prejudice against 11 that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an 12 appropriate period. 13 14 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the Court, 15 shall serve the summons and the complaint. 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). “[A]n 16 incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for 17 service of the summons and complaint and [he] should not be penalized by having his action dismissed 18 for failure to effect service where the U.S. Marshal or the court clerk has failed to perform his duties.” 19 Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (internal quotations and citation omitted), 20 abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). “So long as the prisoner has 21 furnished the information necessary to identify the defendant, the marshal’s failure to effect service is 22 automatically good cause. . . .” Walker, 14 F.3d at 1422 (internal quotations and citation omitted). 23 However, where a pro se plaintiff fails to provide the Marshal with accurate and sufficient information 24 to effect service of the summons and complaint, the Court’s sua sponte dismissal of the unserved 25 defendants is appropriate. Walker, 14 F.3d at 1421-22. 26 At this juncture, the United States Marshal’s office has exhausted the avenues available to it in 27 attempting to locate and serve Defendant Rodriguez. It is Plaintiff’s obligation to proceed information 28 wOAOe 4: fA SAR MUU SPOR Oe AY OT Mt 1 necessary to identify and locate a given defendant—which Plaintiff has not done and is apparent 2 unable to do. Accordingly, dismissal of Defendant Rodriguez for failure to serve is warranted. 3 Il. 4 RECOMMENDATION 5 Based on the foregoing, it is HEREBY RECOMMENDED that Defendant Rodriguez be 6 || dismissed from the action, without prejudice, pursuant to Rule 4(m) of the Federal Rules of Civil 7 || Procedure. 8 This Findings and Recommendation will be submitted to the United States District Judge 9 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) days 10 || after being served with this Findings and Recommendation, Plaintiff may file written objections with 11 Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 12 || Recommendation.” Plaintiff is advised that failure to file objections within the specified time may 13 || result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 14 || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 15 16 ||IT IS SO ORDERED. Al (re 17 || Dated: _ June 30, 2020 OF 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28