(PC) Loureiro, Jr. v. Santoro ( 2023 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 RONALD W. F. JOSHUA LOUREIRO, Case No. 1:21-cv-01599-AWI-BAM (PC) JR., 8 FINDINGS AND RECOMMENDATIONS Plaintiff, RECOMMENDING DISMISSAL OF DOE 9 DEFENDANT AND DISMISSAL OF v. ACTION 10 SANTORO, et al., (ECF Nos. 20, 21) 11 Defendants. FOURTEEN (14) DAY DEADLINE 12 13 Plaintiff Ronald W. F. Joshua Loureiro, Jr. (“Plaintiff”) is a state prisoner proceeding pro 14 se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action 15 proceeds on Plaintiff’s first amended complaint against Defendant John Doe hearing officer for 16 denial of due process in violation of the Fourteenth Amendment. 17 I. Background 18 On September 12, 2022, the Court issued an order directing Plaintiff to file a motion to 19 substitute the identity of Defendant John Doe that provided the Court with enough information to 20 locate them for service of process. (ECF No. 20.) Plaintiff was warned that failure to comply 21 with the Court’s order would result in dismissal of the unidentified defendant from this action, 22 without prejudice, for failure to serve with process pursuant to Federal Rule of Civil Procedure 23 4(m). (Id. at 2.) Plaintiff’s written notice identifying this defendant was due on or before 24 December 14, 2022. 25 Following Plaintiff’s failure to file a response or otherwise communicate with the Court, 26 on January 9, 2023, the Court issued an order directing Plaintiff, within twenty-one (21) days, to 27 file a motion to substitute the identify of Defendant John Doe that provides the Court with enough 28 information to locate the defendant for service of process, or to show cause in writing why 1 Defendant John Doe should not be dismissed from this action for failure to prosecute. (ECF No. 2 21.) Plaintiff was warned that failure to comply with the Court’s order would result in the 3 dismissal of the unidentified defendant from this action for failure to serve with process pursuant 4 to Federal Rule of Civil Procedure 4(m), and dismissal of this action, without prejudice, for 5 failure to prosecute. (Id. at 2.) 6 The deadline for Plaintiff to respond to the Court’s order has passed, and Plaintiff has 7 failed to respond to the Court’s order or otherwise communicate with the Court. 8 II. Discussion 9 Pursuant to Federal Rule of Civil Procedure 4(m): 10 If a defendant is not served within 90 days after the complaint is filed, the court— 11 on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a 12 specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. 13 14 Fed. R. Civ. P. 4(m). 15 In cases involving a plaintiff proceeding in forma pauperis, a United States Marshal, upon 16 order of the court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “[A] 17 prisoner ‘is entitled to rely on the U.S. Marshal for service’ . . . as long as he or she ‘provide[s] 18 the necessary information to help effectuate service.’” Schrubb v. Lopez, 617 Fed. Appx. 832, 19 832 (9th Cir. 2015) (quoting Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990), abrogated on 20 other grounds by Sandin v. Connor, 515 U.S. 472 (1995)). “So long as the prisoner has furnished 21 the information necessary to identify the defendant, the marshal’s failure to effect service is 22 ‘automatically good cause . . . .’” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting 23 Sellers v. United States, 902 F.2d 598, 603 (7th Cir. 1990)), overruled on other grounds by 24 Sandin, 515 U.S. at 483–84. However, where a pro se plaintiff fails to provide the Marshal with 25 accurate and sufficient information to effect service of the summons and complaint, the Court’s 26 sua sponte dismissal of the unserved defendants is appropriate. Walker, 14 F.3d at 1421–22. 27 Plaintiff has been granted multiple opportunities to provide sufficient information to 28 identify Defendant John Doe so the United States Marshal may serve the summons and 1 complaint. Despite the Court’s warning that failure to do so would result in dismissal of the Doe 2 Defendant from this action, and closure of this action, Plaintiff has not complied with the Court’s 3 orders or otherwise communicate with the Court. 4 III. Conclusion and Recommendations 5 Plaintiff has failed to provide sufficient information to identify Defendant John Doe so the 6 United States Marshal may serve the summons and complaint and failed to comply with Court 7 orders. In addition, Plaintiff has failed to set forth good cause for his failure to identify Defendant 8 John Doe, the only defendant remaining in this action. 9 Accordingly, IT IS HEREBY RECOMMENDED as follows: 10 1. Defendant John Doe be dismissed, without prejudice, pursuant to Federal Rule of Civil 11 Procedure 4(m); and 12 2. This action be dismissed, without prejudice, for failure to prosecute. 13 * * * 14 These Findings and Recommendations will be submitted to the United States District 15 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 16 fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may 17 file written objections with the Court. The document should be captioned “Objections to 18 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 19 objections within the specified time may result in the waiver of the “right to challenge the 20 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 21 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 22 IT IS SO ORDERED. 23 24 Dated: February 16, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 25 26 27 28