(PS) Hedrington v. David Grant Medical Center ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ORLONZO HEDRINGTON, No. 2:23-cv-0801-TLN-CKD (PS) 12 Plaintiffs, 13 v. FINDINGS AND RECOMMENDATIONS TO DISMISS FOR FAILURE TO SERVE 14 DAVID GRANT MEDICAL CENTER, et al., 15 Defendants. 16 17 18 Proceeding without the assistance of counsel, plaintiff filed this action on April 27, 2023.1 19 On April 28, 2023, plaintiff was issued summons by the Clerk of Court to serve the defendants. 20 On August 18, 2023, the court filed an order informing plaintiff that, pursuant to Rule 21 4(m) of the Federal Rules of Civil Procedure, a defendant must be dismissed if service of the 22 summons and complaint is not accomplished on the defendant within 90 days after the complaint 23 was filed. (ECF No. 18.) Plaintiff was ordered to show cause in writing within 14 days as to why 24 defendant City of Fairfield Police Department should not be dismissed for plaintiff’s failure to 25 comply with Rule 4 as to defendant Fairfield Police Department. Plaintiff has not filed any 26 response to the order to show cause, or otherwise communicated with the court since that date. 27 1 Because plaintiff proceeds without counsel, this matter was referred to the undersigned under 28 Local Rule 302(c)(21). ] “Generally pro se litigants are allowed more latitude than litigants represented by counsel 2 || to correct defects in service of process and pleadings.” Eriksen v. Washington State Patrol, No. 3 || CV-05-0195-LRS, 2006 WL 994750, at *1 (E.D. Wash. Apr. 7, 2006) (quoting Moore v. Agency 4 | for Intern. Development, 994 F.2d 874 (D.C. Cir. 1993)). But pro se status itself is not sufficient 5 || to show good cause for failure to serve. Townsel v. Contra Costa County, 820 F.2d 319, 320 (9th 6 || Cir. 1987) (noting that ignorance of or confusion about service requirements does not constitute 7 || “good cause” for failure to serve). 8 As set forth, service of the summons and complaint must occur within 90 days of filing 9 || the complaint, unless otherwise ordered. Fed. R. Civ. P. 4(c)(1) & (m). Ifa defendant is not 10 || served by the deadline, the court—on motion or on its own after notice to the plaintiff—must 11 || dismiss the action without prejudice against that defendant or order that service be made within a 12 || specified time. Fed. R. Civ. P. 4(m). Given plaintiff's failure to serve, lack of good cause 13 || explanation, and failure to respond to a recent court order inquiring about the status of service, the 14 | claims against the Fairfield Police Department should be dismissed. See Fed. R. Civ. P. 4(m); 15 | King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the same rules of 16 || procedure that govern other litigants.”). 17 In accordance with the above, IT IS HEREBY RECOMMENDED that plaintiffs claims 18 || against the Fairfield Police Department be DISMISSED WITHOUT PREJUDICE. 19 These findings and recommendations are submitted to the United States District Judge 20 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 21 || days after being served with these findings and recommendations, plaintiff may file written 22 || objections with the court. Such a document should be captioned “Objections to Magistrate 23 || Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within 24 || the specified time may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 25 || F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 26 | Dated: September 13, 2023 / ae / a ly. ae 7 CAROLYNK. DELANEY 28 | gnedio3evo80t x4-fé UNITED STATES MAGISTRATE JUDGE