(PS) Lewis v. Jones ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 YOLANDA LEWIS, No. 2:22-cv-0423 KJM DB PS 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 SCOTT L. JONES, et al., 15 Defendants. 16 17 Plaintiff Yolanda Lewis is proceeding in this action pro se. This matter was referred to 18 the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). On March 19 7, 2022, plaintiff filed a complaint, paid the applicable filing fee, and summons issued. (ECF 20 Nos. 1 & 4.) A letter also issued that advised plaintiff that Rule 4(m) of the Federal Rules of 21 Civil Procedure provides that a defendant must be dismissed if service of the summons and 22 complaint is not accomplished on the defendant within 90 days after the complaint was filed. 23 (ECF No. 5.) 24 On March 8, 2022, plaintiff filed a document styled “EXIGENT CIRCUMSTANCES EX 25 PARTE APPLICATION FOR ORDER BY BODY WRIT WITHOUT NOTICE TO PATIES 26 (sic) FOR GOOD CAUSE.” (ECF No. 6 at 1.) Therein, plaintiff requests the release “to prevent 27 injury to the man being held surety for an unlawful commercial debt, against an Indigenous 28 American Autochthon Indian Heir, Beneficiary by the creation of illegal trust[.]” (Id.) The 1 document seeks an order requiring “the United States Marshall Service” to “seize the body of 2 Wilson Maurice Davis, Notary Peace Officer, The League of American Autochthon Heirs, Tribal 3 Nation, from the Sacramento County Jail Immediately[.]” (Id. at 8.) The document is essentially 4 indecipherable and fails to provide authority to support plaintiff obtaining an order directing the 5 Marshall Service to seize a third party being detained in the Sacramento County Jail. 6 Moreover, no defendant has appeared in this action and plaintiff has not filed a proof of 7 service on a defendant. Accordingly, on October 25, 2022, the undersigned issued plaintiff an 8 order to show cause as to why this action should not be dismissed due to a lack of prosecution. 9 (ECF No. 8.) On November 9, 2022, plaintiff filed a document styled “NOTICE OF REMOVAL 10 OF CLAIMS AGAINST THE UNITED STATES.” (ECF No. 9.) Again, the document is 11 essentially indecipherable, with allegations such as that the “Defendants continue to engage in 12 genocide by the trafficking of manumitted protect class persons outside the District of Columbia, 13 City of Washington to enforce disappearance by paper genocide[.]” (Id. at 3.) 14 Although the undersigned is cognizant of the challenges faces by pro se litigants, over a 15 year has passed and no defendant has appeared in this action. Plaintiff has been provided more 16 than ample opportunity to serve a defendant but has failed to do so. 17 Rule 4(m) provides two avenues for relief. The first is mandatory: the district court must extend time for service upon a showing of 18 good cause. The second is discretionary: if good cause is not established, the district court may extend time for service upon a 19 showing of excusable neglect. 20 Crowley v. Bannister, 734 F.3d 967, 976 (9th Cir. 2013) (quoting Lemoge v. United States, 587 21 F.3d 1188, 1198 (9th Cir. 2009)). Here, plaintiff has shown neither good cause nor excusable 22 neglect. 23 Accordingly, IT IS HEREBY ORDERED that plaintiff’s March 8, 2022, ex parte 24 application (ECF No. 6) is denied without prejudice to renewal. 25 It is also HEREBY RECOMMENDED that this action be dismissed without prejudice 26 pursuant to Rule 4(m). 27 These findings and recommendations will be submitted to the United States District Judge 28 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 1 after being served with these findings and recommendations, plaintiff may file written objections 2 with the court. A document containing objections should be titled “Objections to Magistrate 3 Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within 4 the specified time may, under certain circumstances, waive the right to appeal the District Court’s 5 order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 6 DATED: March 28, 2023 /s/ DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 DLB:6 DB\orders\orders.pro se\lewis0423.R4.f&rs 21 22 23 24 25 26 27 28