(PC) Rood v. Department of Corrections ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 COLTON JAMES ROOD, Case No. 1:19-cv-01517-JLT-HBK (PC) 12 Plaintiff, ORDER DIRECTING THE CLERK TO CORRECT DOCKET 13 v. FINDINGS AND RECOMMENDATION TO 14 N.KEOVILAY-SEE, SCOTT DISMISS DEFENDANTS PHILIPS AND FRAUENHEIM, RON CARVER, CARVER UNDER FEDERAL RULE OF 15 PHILIPS, CIVIL PROCEDURE 4(M) 16 Defendants. 14-DAY DEADLINE 17 18 This matter comes before the Court after Plaintiff failed to respond to the Court’s order to 19 show cause. The undersigned recommends that the district court dismiss Defendants Philips and 20 Ron Carver without prejudice pursuant to Federal Rules of Civil Procedure 4(m). 21 BACKGROUND 22 Plaintiff is a state prisoner proceeding pro se and in forma pauperis on his First Amended 23 Complaint pursuant to 42 U.S.C. § 1983 as screened. (Doc. Nos. 27, 33). After screening,1 the 24 Court directed service of Plaintiff’s First Amended Complaint in accordance with the Court’s E- 25 Service pilot program for civil rights for the Eastern District of California. (Doc. No. 34). The 26 California Department of Corrections (“CDCR”) identified former CDCR employee, Ron Carver 27 1 The Court found the First Amended Complaint stated cognizable Eighth Amendment claims 28 against John Doe, Philips, Jane Doe, and STRH Administrator/Warden. (Doc. No. 27, 33). 1 as John Doe but it could not identify an individual by the name of “Philips” or “Phillips” and 2 could not waive service on behalf of Ron Carver. (Doc. Nos. 36, 37). CDCR provided the last 3 known telephone number for Ron Carver as maintained in its records. (Id.). Despite multiple 4 efforts, the United States Marshals Service was unsuccessful in effectuating service on Mr. 5 Carver or identifying a Defendant by the name of “Philips.” (Doc. No. 41). 6 On August 12, 2022, the Court issued an Order to Show Cause directing Plaintiff to 7 provide an updated address and/or contact information for Defendants Philips and Ron Carver 8 and subsequently granted Plaintiff an extension of time to serve both Defendants. (Doc. Nos. 44- 9 46). On February 15, 2023, the Court afforded Plaintiff an opportunity, through discovery, to 10 identify and provide the Court with updated addresses or contact information for Defendants 11 Philips and Ron Carver within sixty (60) days or the undersigned would recommend the dismissal 12 of these Defendants pursuant to Federal Rule of Civil Procedure 4(m). (Doc. No. 59 at 3:14-18). 13 On May 15, 2023, after Plaintiff failed to provide the Court with an updated address or 14 contact information for Defendants Philips and Ron Carver, the undersigned issued a second 15 Order to Show Cause directing Plaintiff, within fourteen (14) days of receipt of the Order, to 16 show cause why the Court should not dismiss Defendants Philips and Ron Carver under Federal 17 Rule of Civil Procedure 4(m). (Doc. No. 61). As of the date of these Findings and 18 Recommendations, Plaintiff has not provided the Court with an address and/or contact 19 information for Defendants Philips or Ron Carver nor otherwise responded to the Court’s May 20 15, 2023 Order to Show Cause and the time to do so has expired. 21 APPLICABLE LAW AND ANALYSIS 22 If a defendant is not served within ninety (90) days after a complaint is filed, the court 23 must, after notice to the plaintiff, dismiss the action without prejudice. Fed. R. Civ. P. 4(m) 24 (emphasis added). “Pro se litigants must follow the same rules of procedure that govern other 25 litigants.” Thomas v. Scott, 2015 U.S. Dist. LEXIS 96365, *6-*7 (C.D. Cal. Jun. 4, 2016) 26 (findings and recommendations to dismiss the prisoner plaintiff’s case for a failure to effect 27 service adopted by Thomas v. Scott, 2015 WL 4507255 (C.D. Cal. Jul. 22, 2015)) (quoting King 28 v.Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (overruled in part by Lacy v. Maricopa County, 693 1 F.3d 896 (9th Cir. 2021)) (citing Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (the failure 2 of a pro se litigant to follow the procedural rules justified the dismissal of the pro se litigant’s 3 civil rights action). 4 As an incarcerated pro se plaintiff proceeding in forma pauperis, Plaintiff is entitled to 5 rely on the U.S. Marshal for service of subpoenas for his unincarcerated witnesses. See Puett v. 6 Blandford, 912 F.2d 270, 275 (9th Cir. 1990). However, it is ultimately Plaintiff’s responsibility 7 to provide the Marshal with accurate and sufficient information to effect service. See Walker v. 8 Sumner, 14 F.3d 1415, 1421–22 (9th Cir. 1994), abrogated on other grounds by Sandin v. 9 Connor, 515 U.S. 472, 115 (1995). 10 Plaintiff had the opportunity through discovery to ascertain information to effectuate 11 service on Defendants Philips and Ron Carver. Rule 4(m) requires that a defendant be served 12 within 90 days. Fed. R. Civ. P. 4(m). More than a year has passed since the Court ordered 13 service on all Defendants. (See Doc. No. 34). Despite Plaintiff engaging in discovery with the 14 Defendants for over 150 days, Plaintiff has neither provided the Court with information to 15 effectuate service on these two Defendants nor shown good cause why further time is needed. 16 The Court issued two show cause orders to Plaintiff, and Plaintiff did not respond to the Court’s 17 May 15, 2023 show cause order. (See Doc. Nos. 44, 61). The Court provided Plaintiff with 18 sufficient time to effectuate service on Defendants Philips and Carver, but he has failed to do so. 19 The undersigned recommends the district court dismiss Defendants Philips and Carver without 20 prejudice pursuant to Rule 4(m). 21 Accordingly, it is ORDERED: 22 The Clerk of Court is directed to terminate Defendant Frenosco from the docket in 23 accordance with the district court’s May 16, 2022 Order. (Doc. No. 33, ¶2). 24 It is further RECOMMENDED: 25 Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, Defendants Philips and 26 Carver be dismissed, without prejudice. 27 NOTICE 28 These Findings and Recommendations will be submitted to the United States District 1 | Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days 2 | of the date of service of these Findings and Recommendations, Plaintiff may file written 3 | objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s 4 | Findings and Recommendations.” Plaintiffs failure to file objections within the specified time 5 | may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 6 | 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 7 Dated: _ July 17. 2023 Mihaw. □□ fareh Zacks 9 HELENA M. BARCH-KUCHTA 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28