(PC) Jackson v. Quick ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 CORNEL JACKSON, Case No. 1:19-cv-01591-JLT-EPG 11 Plaintiff, FINDINGS AND RECOMMENDATIONS THAT DEFENDANT KASANDRA 12 v. SANCHEZ BE DISMISSED WITHOUT PREJUDICE FOR FAILURE TO 13 COMPLETE SERVICE PURSUANT TO JASON QUICK, et al., FEDERAL RULE OF CIVIL 14 PROCEDURE 4(m) Defendants. 15 OBJECTIONS, IF ANY, DUE WITHIN 14 DAYS 16 17 I. BACKGROUND 18 Plaintiff Cornel Jackson is a pretrial detainee proceeding pro se and in forma pauperis in 19 this civil rights action pursuant to 42 U.S.C. § 1983. Due to Plaintiff’s failure to complete service 20 on Defendant Kasandra Sanchez pursuant to Federal Rule of Civil Procedure 4(m), the Court will 21 recommend that Defendant Kasandra Sanchez be dismissed from this action without prejudice. 22 Plaintiff initiated this action with the filing of the complaint on November 7, 2019. (ECF 23 No. 1). Plaintiff amended his complaint twice, with the operative complaint being Plaintiff’s 24 second amended complaint. (ECF Nos. 23, 25). On September 30, 2020, this Court issued 25 findings and recommendations, recommending that this case proceed on Plaintiff’s claims in his 26 second amended complaint against (1) Defendants Jason Quick, Elizabeth Alvarez, A. Rossette, 27 Lt. Followell, Lisette Lopez, Dominic Ramos, Kasandra Sanchez, Hermina Marley, and C. 28 Prudente for violating Plaintiff’s First and Sixth Amendment rights with respect to Plaintiff’s 1 legal correspondence and for conspiracies to violate such rights and (2) Defendant Elizabeth 2 Alvarez for violating Plaintiff’s right of access to the courts. (ECF No. 26). These findings and 3 recommendations were adopted on October 21, 2020. (ECF 30). 4 Thereafter, the Court ordered Plaintiff to return service documents necessary to complete 5 service on the Defendants. (ECF No. 31, 34). Plaintiff submitted the service documents, and the 6 Court directed the United States Marshals Service to pursue service on Defendants using the 7 documents that Plaintiff provided. (ECF Nos. 36, 37). 8 On December 17, 2020, the summons was returned unexecuted as to Defendant Kasandra 9 Sanchez with the following notation: “Service returned unexecuted. Sanchez no longer employee 10 and Madera Co. will not accept service. No alternate address known.” (ECF No. 45). To date, 11 there has been no return of service demonstrating that service of the complaint and summons on 12 Defendant Kasandra Sanchez was accomplished nor has a waiver of service been filed by this 13 Defendant. 14 Given these circumstances, the Court entered an order on April 14, 2022, directing 15 Plaintiff to show cause why the case against Defendant Kasandra Sanchez should not be 16 dismissed without prejudice for failure to complete service pursuant to Federal Rule of Civil 17 Procedure 4(m). (ECF No. 111). Plaintiff’s response was due no later than May 5, 2022. To date, 18 Plaintiff has not filed any response. 19 II. LEGAL STANDARDS 20 Under Federal Rule of Civil Procedure 4(m), “[i]f a defendant is not served within 90 days 21 after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must 22 dismiss the action without prejudice against that defendant or order that service be made within a 23 specified time.” Fed. R. Civ. P. 4(m). However, “if the plaintiff shows good cause for the failure, 24 the court must extend the time for service for an appropriate period.” Id. When a plaintiff 25 proceeds in forma pauperis, the Court must order the United States Marshals Service to pursue 26 service. Fed. R. Civ. P. 4(c)(3). However, “Plaintiff is responsible for providing the Marshal with 27 sufficient information to serve the defendants” and, where he fails to do so, “the Court’s sua 28 sponte dismissal of the unserved defendants is appropriate.” Colon v. Zia, No. 1:10-CV-01642- 1 | GSA-PC, 2011 WL 6025657, at *3 (E.D. Cal. Dec. 2, 2011). Uf. ANALYSIS 3 Here, there is no indication on the docket that Plaintiff has served Defendant Kasandra 4 | Sanchez. Moreover, despite being directed to show cause why Defendant Kasandra Sanchez 5 | should not be dismissed under Rule 4(m), Plaintiff has not filed anything to excuse his failure to 6 | serve Defendant Kasandra Sanchez. Accordingly, Plaintiff having failed to offer proof of service 7 | or good cause to excuse service, the Court will recommend that Defendant Kasandra Sanchez be 8 | dismissed from this action without prejudice. IV. RECOMMENDATION 10 Based on the foregoing, IT IS RECOMMENDED that the case against Defendant 11 | Kasandra Sanchez be dismissed without prejudice because of Plaintiffs failure to complete 12 || service pursuant to Federal Rule of Civil Procedure 4(m). 13 These Findings and Recommendations are submitted to the assigned United States District 14 | Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 15 || Rules of Practice for the United States District Court, Eastern District of California. Within 16 || fourteen (14) days after service of the Findings and Recommendations, any party may file written 17 | objections with the Court and serve a copy on all parties. Such a document should be captioned 18 | “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the objections 19 | shall be served and filed within fourteen (14) days after service of the objections. The assigned 20 | United States District Court Judge will then review the Magistrate Judge’s ruling pursuant to 28 21 | U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified 22 || time may waive the right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 23 | 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED. 25 Dated: _May 11, 2022 [le ey — 26 UNITED STATES MAGISTRATE JUDGE 27 28