(PC) Roberson v. Farmbrough ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MORRIS ROBINSON, No. 1:21-cv-00990-ADA-SAB (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATION REGARDING DISMISSAL OF DEFENDANT 13 v. SERNA PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 4(M) 14 J. FARMBROUGH, et al., (ECF No. 20) 15 Defendants. 16 17 Plaintiff Morris Robinson is proceeding pro se and in forma pauperis in this civil rights 18 action filed pursuant to 42 U.S.C. § 1983. 19 This action proceeds on Plaintiff’s excessive force claim against Defendants Fambrough, 20 Johnson, Silva, Bedolla and Furlong for excessive force, failure to intervene claim against 21 Defendants Cruz and Rodriguez, and deliberate indifference claim against Defendant Serna. 22 However, Defendant Serna as not been served with process. 23 I. 24 DISCUSSION 25 Rule 4(m) of the Federal Rules of Civil Procedure provides that, if service of the 26 summons and complaint is not made upon a defendant within 90 days of filing the complaint, 27 federal district courts have the authority to sua sponte dismiss an action without prejudice, after 28 notice to the plaintiff. See Crowley v. Bannister, 734 F.3d 967, 975 (9th Cir. 2013). If, however, a 1 plaintiff shows good cause for the failure to serve the complaint within that time frame, the Court 2 must extend the time for accomplishing service. Fed. R. Civ. P. 4(m). The burden of establishing 3 good cause is on the plaintiff. Efaw v. Williams, 473 F.3d 1038, 1040 (9th Cir. 2007). The “good 4 cause” exception to Rule 4(m) applies “only in limited circumstances” and is not satisfied by 5 “inadvertent error or ignorance of the governing rules.” Hamilton v. Endell, 981 F.2d 1062, 1065 6 (9th Cir. 1992). “Pro se litigants must follow the same rules of procedure that govern other 7 litigants.” King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987); see also Ghazali v. Moran, 46 F.3d 8 52, 53-54 (9th Cir. 1995) (per curiam) (failure of pro se litigant to follow procedural rules 9 justified dismissal of civil rights action). 10 Here, the California Department of Corrections and Rehabilitation returned a notice of 11 intent to not waive personal service on Defendant Serna because “KVSP has never had an 12 employee by this name as a radiology technician.” (ECF No. 19.) Therefore, service of process 13 was forwarded to the United States Marshal. On November 16, 2021, the United States Marshal 14 returned the summons as unexecuted, noting that more information is necessary. (ECF No. 20.) 15 The Court previously issued an order to show cause for Plaintiff to provide additional information 16 for serve on Defendant Serna. (ECF No. 21.) Plaintiff filed a response but simply provided the 17 same information already known. (ECF No. 23.) Therefore, the Court allowed the action to 18 proceed with discovery in order to allow Plaintiff to obtain additional information as the identify 19 and/or whereabouts of Defendant Serna. The discovery deadline has now passed and Defendant 20 Serna has not been served with process. Accordingly, unserved Defendant Serna should be 21 dismissed under Rule 4(m), without prejudice. 22 II. 23 RECOMMENDATION 24 Based on the foregoing, it is HEREBY RECOMMENDED that Defendant Serna be 25 dismissed from the action, without prejudice, pursuant to Federal Rule of Civil Procedure 4(m). 26 This Findings and Recommendation will be submitted to the United States District Judge 27 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 28 days after being served with this Findings and Recommendation, the parties may file written 1 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 2 | Findings and Recommendation.” The parties are advised that failure to file objections within the 3 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 4 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 5 6 IT IS SO ORDERED. DAA (e_ 7 | Dated: _November 7, 2023 _ OE UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28