(PS) Rogers v. Bonta ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KIM EDWARD ROGERS, Case No. 2:22-cv-01157-TLN-JDP (PS) 12 Plaintiff, ORDER 13 v. THAT DEFENDANT COOPER RESPOND TO PLAINTIFF’S SECOND AMENDED 14 ROB BONTA, et al., COMPLAINT AND THE CLERK’S OFFICE ADMINISTRATIVELY TERMINATE 15 Defendants. DEFENDANT SANCHEZ 16 ECF No. 26 17 RESPONSE DUE WITHIN TWENTY-ONE DAYS 18 FINDINGS AND RECOMMENDATIONS 19 THAT DEFENDANT BONTA BE 20 DISMISSED WITHOUT PREJUDICE FOR PLAINTIFF’S FAILURE TO EFFECT 21 SERVICE 22 OBJECTIONS DUE WITH FOURTEEN DAYS 23 24 On December 19, 2022, the court ordered plaintiff to show cause why defendants Bonta 25 and Sanchez should not be dismissed for failure to effect service of process within the time 26 prescribed by Federal Rule of Civil Procedure 4(m). ECF No. 17. Plaintiff did not file a 27 response. Thus, on February 27, 2023, the court again directed plaintiff to show cause why those 28 1 defendants should not be dismissed. ECF No. 27. Plaintiff filed a response to that order; 2 however, his response did not explain why he failed to properly serve defendants Bonta and 3 Sanchez. ECF No. 29. Accordingly, I will recommend that defendant Bonta be dismissed 4 pursuant to Rule 4(m).1 5 If a defendant is not served within ninety days after a complaint is filed, the court must, 6 after notice to the plaintiff, dismiss the unserved defendant without prejudice. Fed. R. Civ. P. 7 4(m) (outlining the requirements for proper service and explaining that a district court may 8 dismiss for failure to serve after providing notice and absent a showing of good cause for failure 9 to serve). Plaintiff has been afforded two opportunities to show good cause for his failure to 10 serve defendant Bonta and he has not done so. See Efaw v. Williams, 473 F.3d 1038, 1040 (9th 11 Cir. 2007) (noting that the burden of establishing good cause is on the plaintiff). 12 Plaintiff has not served Bonta within the required time period nor demonstrated good 13 cause for his failure to do so; thus, I recommend that Bonta be dismissed from this action 14 pursuant to Federal Rule of Civil Procedure 4(m). 15 Accordingly, it is hereby ORDERED that: 16 1. The Clerk of Court is directed to administratively terminate defendant Guadalupe 17 Sanchez from this action. 18 2. Defendant Cooper is directed to file a response to plaintiff’s second amended 19 complaint, ECF No. 26, within twenty-one days. 20 Further, it is hereby RECOMMENDED that defendant Rob Bonta be dismissed without 21 prejudice due to plaintiff’s failure to serve him within the time period specified under 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 28 U.S.C. § 636(b)(l). Within fourteen days 25 after being served with these findings and recommendations, any party may file written 26 1 Plaintiff has filed a second amended complaint. ECF No. 26. In that complaint, plaintiff 27 neither lists Sanchez as a defendant nor asserts allegations against him. Accordingly, plaintiff has voluntarily abandoned his prior claims against Sanchez. The Clerk of Court is directed to 28 administratively terminate defendant Sanchez. 1 | objections with the court and serve a copy on all parties. Such a document should be captioned 2 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 3 || objections shall be served and filed within fourteen days after service of the objections. The 4 || parties are advised that failure to file objections within the specified time may waive the right to 5 || appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 6 || v. Yist, 951 F.2d 1153 (9th Cir. 1991). 7 g IT IS SO ORDERED. 9 ( 1 ip. — Dated: _ January 9, 2024 \E ee 10 JEREMY D. PETERSON 1 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28