(PS) Bell v. Solano County Dept. of Health and Human Services ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CLARENCE BELL, et al., No. 2:22-cv-01687-TLN-CKD (PS) 12 Plaintiffs, 13 v. FINDINGS AND RECOMMENDATIONS TO DISMISS FOR FAILURE TO SERVE 14 SOLANO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, et 15 al., 16 Defendants. 17 18 On September 26, 2022, plaintiffs, proceeding pro se, filed a fee-paid complaint against 19 defendants.1 (ECF No. 1.) The next day, the Clerk of Court issued a summons and initial 20 scheduling order. (See ECF Nos. 2, 3.) The scheduling order required plaintiffs to serve 21 defendants within 90 days, and by 10 days after that, “file with the Clerk a certificate reflecting 22 such service.” (See ECF No. 3 at ¶ 2.) This is also required by Rule 4 of the Federal Rules of 23 Civil Procedure. 24 On January 31, 2023, the court ordered plaintiffs to file a statement with the court 25 indicating the status of service, or any good cause reasons why defendants had not been served 26 27 1 Because plaintiffs are representing themselves in this action, all pre-trial proceedings are referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1) and E.D. Cal. Local 28 Rule 302(c)(21). 1 pursuant to Federal Rule of Civil Procedure 4. (ECF No. 7.) Plaintiffs were informed that failure 2 to show good cause for the lack of service of process would result in dismissal of plaintiffs’ case 3 without prejudice. (Id.) Plaintiffs filed a written response on February 6, 2023 (ECF No. 8) and 4 February 7, 2023 (ECF No. 9) indicating that legal documents were sent to defendants by mail. 5 The court issued another order, granting plaintiffs an additional opportunity to serve 6 defendants, and informing plaintiffs that mailing documents does not constitute proper service. 7 (ECF No. 11.) The extended deadline has now passed, and plaintiffs again have failed to 8 demonstrate that they have served any defendant. Plaintiffs have not filed proof of actual service, 9 or proof of defendants’ agreement to waive service. 10 As explained in the court’s prior orders, service of the summons and complaint must occur 11 within 90 days of filing the complaint, unless otherwise ordered. Fed. R. Civ. P. 4(c)(1) & (m). 12 If a defendant is not served by the deadline, the court—on motion or on its own after notice to the 13 plaintiff—must dismiss the action without prejudice against that defendant or order that service 14 be made within a specified time. Fed. R. Civ. P. 4(m). 15 Here, plaintiffs were provided service documents in September 2022 and have been 16 granted additional time to effectuate service. Over six months have now passed without service 17 of process. Self-represented plaintiffs are given great latitude in prosecuting their cases, given 18 their unfamiliarity with the legal system and federal rules. See, e.g., Eriksen v. Washington State 19 Patrol, 2006 WL 994750, at *1 (E.D. Wash. Apr. 7, 2006) (“Generally pro se litigants are allowed 20 more latitude than litigants represented by counsel to correct defects in service of process and 21 pleadings.”) (quoting Moore v. Agency for Intern. Development, 994 F.2d 874 (D.C. Cir. 1993)). 22 However, pro se status itself is not sufficient to show good cause for failure to serve. Townsel v. 23 Contra Costa County, 820 F.2d 319, 320 (9th Cir. 1987) (noting that ignorance of or confusion 24 about service requirements does not constitute “good cause” for failure to serve). Given the lack 25 of good cause and failure to serve, despite multiple extensions, this case should be dismissed 26 without prejudice. See Fed. R. Civ. P. 4(m); see also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 27 1987) (“Pro se litigants must follow the same rules of procedure that govern other litigants.”). 28 ///// 1 FINDINGS AND RECOMMENDATIONS 2 Accordingly, IT IS HEREBY RECOMMENDED that: 3 1. Plaintiffs’ claims be DISMISSED WITHOUT PREJUDICE; and 4 2. The Clerk of Court be directed to CLOSE this case. 5 These findings and recommendations are submitted to the United States District Judge 6 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 7 || days after being served with these findings and recommendations, plaintiffs may file written 8 | objections with the court. Such a document should be captioned “Objections to Magistrate 9 || Judge’s Findings and Recommendations.” Plaintiffs are advised that failure to file objections 10 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 11 | Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 12 | 1991). 13 | Dated: April 18, 2023 / ae □□ / a Ly a 4 CAROLYN K DELANEY 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 | a1 bet.s687 19 20 21 22 23 24 25 26 27 28