(PC) Howard v. Brown, Jr. ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 MICHAEL ANTHONY HOWARD, Case No. 1:18-cv-01710-DAD-EPG (PC) 11 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS 12 v. LENO AND W. HANNA BE DISMISSED FROM THIS ACTION, WITHOUT 13 SGT. ENCINAS, et al., PREJUDICE, PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 4(M) 14 Defendants. (ECF NOS. 17, 18, 19, & 39) 15 OBJECTIONS, IF ANY, DUE WITHIN 16 FOURTEEN DAYS 17 18 I. BACKGROUND 19 Michael Howard (“Plaintiff”) is a state prisoner proceeding pro se and in forma 20 pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983, which includes state law 21 claims. 22 This case now proceeds “on Plaintiff’s complaint filed November 19, 2018 (ECF No. 23 1), on the following claims: Plaintiff’s claim against defendants J. Flores, J. Alejo, R. Nichols, 24 H. Rodriguez, A. Loza, Leno, and A. Encinas for excessive force in violation of the Eighth 25 Amendment; Plaintiff’s claim against defendant Tumacder for failure to protect in violation of 26 the Eighth Amendment; Plaintiff’s claim for deliberate indifference to serious medical needs in 27 violation of the Eighth Amendment against defendants J. Flores, J. Alejo, R. Nichols, H. 28 1 Rodriguez, A. Loza, Leno, A. Encinas, Tumacder, Soto, [W.] Hanna, and Blevins; Plaintiff’s 2 Bane Act claim against defendants J. Flores, J. Alejo, R. Nichols, H. Rodriguez, A. Loza, Leno, 3 and A. Encinas; and Plaintiff’s assault and battery claims against defendants J. Flores, J. Alejo, 4 R. Nichols, H. Rodriguez, A. Loza, Leno, and A. Encinas.” (ECF No. 17, p. 1). All other 5 claims and defendants were dismissed. (ECF No. 31). 6 Neither defendant Leno nor defendant W. Hanna1 has been served. The summons 7 directed to defendant Leno was returned unexecuted. (ECF No. 24). The United States 8 Marshals Service conducted a review of the relevant duty roster, but “[t]here was no CO named 9 Leno or anything close to that working on the day of the incident.” (Id.). The assigned Deputy 10 or Clerk certified that he or she was unable to locate defendant Leno. (Id.). 11 As to defendant W. Hanna, evidence has been submitted that there was no W. Hanna 12 working at the institution when the incident occurred, and that there is still no W. Hanna 13 employed at the institution. (ECF No. 28-1, pgs. 1-2). 14 Accordingly, the Court issued an order to show cause, directing Plaintiff to “show cause 15 why the Court should not issue findings and recommendations to the assigned district judge, 16 recommending that defendants Leno and W. Hanna be dismissed from this action, without 17 prejudice, pursuant to Federal Rule of Civil Procedure 4(m).” (ECF No. 39, p. 3). The 18 deadline for Plaintiff to respond to the order to show cause has passed, and Plaintiff has not 19 responded to the order to show cause or requested the issuance of a third party subpoena. 20 II. LEGAL STANDARDS 21 Pursuant to Federal Rule of Civil Procedure 4(m), 22 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 23 action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the 24 court must extend the time for service for an appropriate period. 25 Fed. R. Civ. P. 4(m). 26 27 1 F. Hanna waived service and filed a motion to dismiss on the ground that he is not named in the Court’s order of service or in the summons (ECF No. 28), but W. Hanna has not been served. 28 1 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of 2 the Court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “‘[A]n 3 incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal 4 for service of the summons and complaint and … should not be penalized by having his action 5 dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to 6 perform his duties….’” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett 7 v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990) (alterations in original)), overruled on other 8 grounds by Sandin v. Connor, 515 U.S. 472 (1995). “So long as the prisoner has furnished the 9 information necessary to identify the defendant, the marshal’s failure to effect service is 10 ‘automatically good cause….’” Walker, 14 F.3d at 1422 (quoting Sellers v. United States, 902 11 F.2d 598, 603 (7th Cir.1990)). However, where a plaintiff proceeding in forma pauperis fails 12 to provide the Marshal with accurate and sufficient information to effect service of the 13 summons and complaint, dismissal of the unserved defendant is appropriate. Walker, 14 F.3d 14 at 1421-22. 15 III. ANALYSIS 16 As discussed above, it appears that there was no “Leno” or “W. Hanna” working at 17 Plaintiff’s institution of confinement on the day of the incident alleged in the complaint. In 18 issuing its order to show cause, the Court gave Plaintiff an opportunity to provide the Marshal 19 with additional information and/or to request the issuance of a third party subpoena so that he 20 could attempt to identify these defendants. (ECF No. 39, p. 3). However, Plaintiff did not 21 respond to the order to show cause, provide the Marshal with additional information, or request 22 the issuance of a third party subpoena. 23 As Plaintiff has failed to provide the Marshal with accurate and sufficient information 24 to effect service of the summons and complaint on defendants Leno and W. Hanna within the 25 time period prescribed by Federal Rule of Civil Procedure 4(m), the Court will recommend that 26 these defendants be dismissed from the action, without prejudice. 27 \\\ 28 \\\ wOow 4.40 UVM EE EU MAR NS MMU IO TAY TM 1 RECOMMENDATION 2 Based on the foregoing, the Court HEREBY RECOMMENDS that defendants Leno 3 W. Hanna be dismissed from this action, without prejudice, because of Plaintiff's failure to 4 || provide the Marshal with accurate and sufficient information to effect service of the summons 5 complaint on defendants Leno and W. Hanna within the time period prescribed by Federal 6 || Rule of Civil Procedure 4(m). 7 These findings and recommendations are submitted to the United States district judge 8 || assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(). Within fourteen 9 || (14) days after being served with these findings and recommendations, any party may file 10 || written objections with the court. Such a document should be captioned “Objections to 11 || Magistrate Judge's Findings and Recommendations.” Any reply to the objections shall be 12 || served and filed within seven (7) days after service of the objections. The parties are advised 13 || that failure to file objections within the specified time may result in the waiver of rights on 14 ||appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 15 F.2d 1391, 1394 (9th Cir. 1991)). 16 4 IT IS SO ORDERED. ‘2 ll Dated: _ May 13, 2020 □□□ hey 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28