(PC) Hammler v. Gooch ( 2023 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ALLEN HAMMLER, Case No. 1:19-cv-00653-AWI-EPG (PC) 11 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANT 12 v. JOHN DOE BE DISMISSED FROM THIS ACTION, WITHOUT PREJUDICE, 13 GOOCH, et al., PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 4(M) 14 Defendants. (ECF Nos. 73 & 80) 15 OBJECTIONS, IF ANY, DUE WITHIN 16 FOURTEEN DAYS 17 18 I. BACKGROUND 19 Allen Hammler (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 20 in this civil rights action filed pursuant to 42 U.S.C. § 1983. This case is proceeding on 21 Plaintiff’s Eighth Amendment claims for deliberate indifference to a serious risk of harm 22 against defendants John Doe and Salcedo and his Eighth Amendment medical indifference 23 claims against defendants Salcedo, Gooch, and Burnes. (ECF Nos. 14 & 23). 24 Defendant John Doe has not been served. On July 28, 2022, the Court set a deadline of 25 September 23, 2022, for Plaintiff to file a motion to substitute a named defendant in place of 26 defendant John Doe. (ECF No. 73, p. 11). Plaintiff filed a motion to extend this deadline. 27 (ECF No. 79). Plaintiff’s motion was late, and he failed to explain why he was unable to 28 timely identify defendant John Doe and file a motion to substitute. Nevertheless, the Court 1 granted Plaintiff’s motion and gave him until November 14, 2022, to file a motion to substitute. 2 (ECF No. 80). The Court also warned Plaintiff that “[n]o further extensions of this deadline 3 will be granted.” (Id. at 2). 4 Plaintiff’s deadline to file a motion to substitute has passed, and Plaintiff has not filed a 5 motion to substitute or identified defendant John Doe. As Plaintiff has failed to identify 6 defendant John Doe, the Court will recommend that defendant John Doe be dismissed from this 7 action, without prejudice, because of Plaintiff’s failure to provide the Court and the United 8 States Marshals Service (“the Marshal”) with accurate and sufficient information to effect 9 service of the summons and complaint on defendant John Doe within the time period 10 prescribed by Federal Rule of Civil Procedure 4(m). 11 II. LEGAL STANDARDS 12 Pursuant to Federal Rule of Civil Procedure 4(m), 13 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 14 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 15 court must extend the time for service for an appropriate period. 16 Fed. R. Civ. P. 4(m). 17 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of 18 the Court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “‘[A]n 19 incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal 20 for service of the summons and complaint and … should not be penalized by having his action 21 dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to 22 perform his duties….’” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett 23 v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990) (alterations in original)), overruled on other 24 grounds by Sandin v. Connor, 515 U.S. 472 (1995). “So long as the prisoner has furnished the 25 information necessary to identify the defendant, the marshal’s failure to effect service is 26 ‘automatically good cause….’” Walker, 14 F.3d at 1422 (quoting Sellers v. United States, 902 27 F.2d 598, 603 (7th Cir.1990)). However, where a plaintiff proceeding in forma pauperis fails 28 to provide the Marshal with accurate and sufficient information to effect service of the 1 summons and complaint, dismissal of the unserved defendant is appropriate. Walker, 14 F.3d 2 at 1421-22. 3 III. ANALYSIS 4 Plaintiff was provided with a deadline to file a motion to substitute a named defendant 5 in place of defendant John Doe. (ECF No. 73, p. 11). The Court also informed Plaintiff that he 6 “may request documents from the named Defendants in order to identify the Doe Defendant. 7 Plaintiff may also request a third party subpoena if this information is not available from the 8 named Defendants.” (Id. at n.4). Plaintiff was warned that if he failed to file a motion to 9 substitute by the deadline, defendant John Doe may be dismissed from this case. (Id. at p. 11). 10 The Court also extended this deadline at Plaintiff’s request. (ECF No. 80). However, 11 Plaintiff’s extended deadline has passed, and Plaintiff has not identified defendant John Doe or 12 filed a motion to substitute a named individuals in place of defendant John Doe.1 13 As Plaintiff has failed to provide the Court and the Marshal with accurate and sufficient 14 information to effect service of the summons and complaint on defendant John Doe within the 15 time period prescribed by Federal Rule of Civil Procedure 4(m), the Court will recommend that 16 defendant John Doe be dismissed from the action, without prejudice.2 17 IV. RECOMMENDATION 18 Based on the foregoing, the Court HEREBY RECOMMENDS that defendant John Doe 19 be dismissed from this action, without prejudice, because of Plaintiff’s failure to provide the 20 Court and the Marshal with accurate and sufficient information to effect service of the 21 summons and complaint on defendant John Doe within the time period prescribed by Federal 22 Rule of Civil Procedure 4(m). 23 These findings and recommendations are submitted to the United States district judge 24 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 25 (14) days after being served with these findings and recommendations, any party may file 26 27 1 Plaintiff did serve a motion to compel production of the name of defendant John Doe on November 30, 2022. (ECF No. 83). However, this motion was denied as untimely. (ECF No. 91). 28 2 The Court notes that this case continues to proceed against defendants Salcedo, Gooch, and Burnes. 1 || written objections with the Court. Such a document should be captioned “Objections to 2 || Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be 3 || served and filed within fourteen (14) days after service of the objections. The parties are 4 || advised that failure to file objections within the specified time may result in the waiver of rights 5 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. 6 || Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 IT IS SO ORDERED. > || Dated: _Mareh 2, 2023 [Je Fahey — 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28