(PC) Stratford v. Brazelton ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ERIC STRATFORD, No. 1:17-cv766-DAD-HBK (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS THAT THIS CASE BE DISMISSED, WITHOUT 13 v. PREJUDICE UNDER FED. R. CIV. P. 4(m) 14 ARNOLD SCHWARZENEGGER, 15 Defendant. 16 17 I. BACKGROUND 18 Plaintiff initiated this action on April 20, 201 while confined in a California institution. 19 Doc. No. 1. Plaintiff voluntarily dismissed this action on November 13, 2017. Doc. Nos. 12, 13. 20 Approximately one year later, Plaintiff moved to re-open the case. Doc. No. 14. The former 21 magistrate judge granted Plaintiff’s motion and reopened the case on December 6, 2018. Doc. 22 No. 16. After screening, Plaintiff was permitted to proceed on his Eight Amendment claim 23 against Defendant Schwarzenegger and the court directed service on Defendant on May 18, 2020. 24 Doc. Nos. 28, 26. On September 10, 2020, the United States Marshal notified the court that 25 despite multiple attempts, they were unable to locate Defendant to effectuate service on him. 26 Doc. No. 30. On September 11, 2020, the former magistrate judge issued an order affording 27 Plaintiff an opportunity to show cause within 30 days why this action should not be dismissed 28 under Federal Rule of Civil Procedure 4(m). Doc. No. 31. The order was not returned as 1 undeliverable. More than 30 days have passed, and Plaintiff has not responded to the order or 2 otherwise sought an extension of time to respond to the order. 3 II. APPLICABLE LAW AND ANALYSIS 4 Rule 4 governs service of process and requires a district court to dismiss a plaintiff’s case 5 after notice if the defendant is not timely served, absent good cause. More specifically, 6 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 7 plaintiff-- must dismiss the action without prejudice or other that service be made within a specified time. But if the plaintiff shows 8 good cause for the failure, the court must extend the time for service for an appropriate period. 9 Fed. R. Civ. P. 4(m) (emphasis added). The court must extend the time period to effectuate 10 service upon a plaintiff showing good cause for defective service; but; if the plaintiff fails to show 11 good cause, the court then has the discretion to dismiss the case without prejudice or to extend the 12 time to effectuate service. See Hopson v. Nove Plaza, LLC, 2019 WL 1078351 *3 (E.D. Ca. 13 March 7, 2019) (internal citations omitted). A plaintiff can show good cause by showing that the 14 party to be served personally received actual notice of the lawsuit, that the defendant would not 15 suffer prejudice, and that plaintiff would be severally prejudiced if his or her complaint were 16 dismissed. Id. (citations omitted). If a plaintiff does not show good cause, then the district court 17 may extend the time for service upon a showing of excusable neglect. Id. (citations omitted). 18 Here, like Hopson, Plaintiff did not respond to the Court’s Show Cause Order. I cannot 19 independently discern any reason based upon the record to find either good cause or excusable 20 neglect to warrant extending time to effectuate service. Given that Plaintiff is no longer 21 confined,1 his prior notice to voluntarily dismiss this action, his failure to respond to the Court’s 22 September 11, 2020 Show Cause Order, I recommend dismissing this action without prejudice as 23 to Defendant Schwarzenegger under Fed. R. Civ. P. 4(m). 24 FINDINGS AND RECOMMENDATIONS: 25 I recommend that: 26 1. This case be dismissed, without prejudice, as to Defendant Schwarzenegger under Fed. 27 28 1 See Notices of Change of Address filed on February 19, 2019 and August 20, 2019. Doc. Nos. 18-19. 1 | R. Civ. P. 4Gm); and 2 2. The Clerk of Court be directed to terminate any pending motions/deadlines and close 3 | this case. 4 NOTICE TO PARTIES 5 A party has fourteen days from this date to file written objections to the Findings and 6 | Recommendation’s factual findings and legal conclusions. See 28 U.S.C. § 636(b)(1)(B) and Rule 7 | 304 of the Local Rules of Practice for the United States District Court, Eastern District of 8 | California. That document should be captioned “Objections to Magistrate Judge’s Findings and ? Recommendations.” The district judge will review the findings and recommendations under 28 8 U.S.C. § 636(b)(1)(C). A party’s failure to file written objections waives that party’s right to challenge on appeal any unobjected-to factual finding or legal conclusion the district judge adopts B from the Findings and Recommendation. See Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 14 | 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 15 16 | IT IS SO ORDERED. 17 18 | Dated: _ March 1, 2021 Mile. □□□ foareA Hack HELENA M. BARCH-KUCHTA 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28