(PC) Phelps v. Perez ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 8 EASTERN DISTRICT OF CALIFORNIA 9 PAUL PHELPS, Case No. 1:22-cv-01406-ADA-SAB (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATIONS 11 RECOMMENDING DISMISSAL OF v. DEFENDANT BETTIS PURSUANT TO 12 RULE 4(M) OF THE FEDERAL RULES OF MANUEL PEREZ, et al., CIVIL PROCEDURE 13 Defendants. (ECF No. 19) 14 15 16 Plaintiff Paul Phelps is proceeding pro se and in forma pauperis in this civil rights action 17 filed pursuant to 42 U.S.C. § 1983. 18 This case is proceeding on Plaintiff’s excessive force claim against Defendants 19 Townsend and Bettis in violation of the Fourteenth Amendment, supervisory liability claim 20 against Defendant Manuel Perez in violation of the Fourteenth Amendment, and Monell liability 21 claim against the County of Madera in violation of the Fourteenth Amendment. (ECF No. 14.) 22 I. 23 DISCUSSION 24 On May 9, 2023, the United States Marshal (USM) returned the summons unexecuted as 25 to Defendant Bettis, noting that the Litigation Coordinator at Valley State Prison indicated there 26 is no record of an officer Bettis employed at the prison. (ECF No. 18.) 27 /// /// 1 Pursuant to Federal Rule of Civil Procedure 4: 2 If a defendant is not served within 90 days after the complaint is filed, the court “on 3 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 specified time. But 4 if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. 5 Fed. R. Civ. P. 4(m). 6 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of 7 the court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(2). “[A]n incarcerated 8 pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of 9 the summons and complaint and ... should not be penalized by having his action dismissed for 10 failure to effect service where the U.S. Marshal or the court clerk has failed to perform his 11 duties.” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett v. Blandford, 912 12 F.2d 270, 275 (9th Cir. 1990)), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 13 (1995). “So long as the prisoner has furnished the information necessary to identify the 14 defendant, the marshal's failure to effect service is ‘automatically good cause....’ ” Walker, 14 15 F.3d at 1422 (quoting Sellers v. United States, 902 F.2d 598, 603 (7th Cir. 1990)). However, 16 where a pro se plaintiff fails to provide the Marshal with accurate and sufficient information to 17 effect service of the summons and complaint, the court's sua sponte dismissal of the unserved 18 defendants is appropriate. Walker, 14 F.3d at 1421-22. 19 Because the USM has not been successful in locating Defendant Bettis, pursuant to Rule 20 4(m), the Court provided Plaintiff with an opportunity to show cause why Defendant Bettis, 21 should not be dismissed from this action for failure to serve process. (ECF No. 19.) However, 22 Plaintiff has failed to respond to the Court’s order to show cause why Defendant Bettis should 23 not be dismissed and the time to do so has passed. At this juncture, the United States Marshal’s 24 office has exhausted the avenues available to it in attempting to locate and serve Defendant 25 Bettis. It is Plaintiff’s obligation to proceed information necessary to identify and locate a given 26 defendant—which Plaintiff has not done and is apparently unable to do. Accordingly, dismissal 27 of Defendant Bettis for failure to serve is warranted. 1 I. 2 RECOMMENDATION 3 Based on the foregoing, it is HEREBY RECOMMENDED that Defendant Bettis be 4 | dismissed from the action, without prejudice, pursuant to Rule 4(m) of the Federal Rules of Civil 5 | Procedure. 6 This Findings and Recommendation will be submitted to the United States District Judge 7 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 8 | days after being served with this Findings and Recommendation, Plaintiff may file written 9 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 10 | Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 11 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 12 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 13 14 IT IS SO ORDERED. DAM Le 15 | Dated: _June 20, 2023 __ ee 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28