(PC) Stone v. Robinson ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NICHOLAS SCOTT STONE, Case No. 1:19-cv-00703-DAD-HBK (PC) 12 Plaintiff, ORDER DIRECTING PLAINTIFF TO SHOW CAUSE UNDER FEDERAL RULE OF CIVIL 13 v. PROCEDURE 4(M) AND FED. R. CIV. P. 41(b) 14 IMAD ABUMERI, 15 Defendant. 16 17 This matter comes before the Court upon periodic review of the file. Plaintiff filed his 18 First Amended Complaint (“FAC”) on November 19, 2019. (Doc. No. 15). Service was made in 19 accordance with the court’s E-Service pilot program for civil rights cases for the Eastern District 20 of California and the clerk issued a summons for Defendant on June 5, 2020. (Doc. Nos. 16, 17). 21 The California Department of Corrections and Rehabilitation (“CDCR”) filed notice on July 6, 22 2020, that all Defendants, except Defendant Abumeri, intended to waive service, and in the 23 additional information section, CDCR stated that Defendant Abumeri is a “Health Net Provider” 24 and “[n]ot a CDCR Employee.” (Doc. No. 20). As of the date of this order, service has not been 25 effectuated on Defendant Abumeri. (See generally docket). Notably, Plaintiff and all of the 26 remaining Defendants have settled this case. (Doc. Nos.45, 46). Thus, at this stage of the 27 proceedings only Defendant Abumeri, who had not yet been served, remains as a named 28 defendant. 1 Federal Rule of Civil Procedure 4(m) requires a plaintiff to serve a defendant within 90 2 days of filing the complaint. Fed. R. Civ. P. 4(m). The time may be extended for good cause 3 shown. Id. If a defendant is not served within the requisite time period, after notice to plaintiff, 4 the court must dismiss the action without prejudice, or order that service be made within a certain 5 time period. Id. (emphasis added). 6 “Pro se litigants must follow the same rules of procedure that govern other litigants.” 7 Thomas v. Scott, 2015 U.S. Dist. LEXIS 96365, *6-*7 (C.D. Cal. Jun. 4, 2016)(findings and 8 recommendations to dismiss the prisoner plaintiff’s case for a failure to effect service adopted by 9 Thomas v. Scott, 2015 U.S. Dist. LEXIS 96387, 2015 WL 4507255 (C.D. Cal. Jul. 22, 2015)) 10 (quoting King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)(overruled in part by Lacy v. Maricopa 11 County, 693 F.3d 896 (9th Cir. 2021)) (citing Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 12 1995)(the failure of a pro-se litigant to follow the procedural rules justified the dismissal of the 13 pro-se litigant’s civil rights action). While prisoners may rely on the U.S. Marshal’s Office to 14 serve a defendant, a district court may dismiss a prisoner’s civil rights complaint for a failure to 15 effect service when the prisoner plaintiff fails to provide the U.S. Marshals with sufficient 16 information to serve a defendant. Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994). The 17 rules of civil procedure are “based on the assumption that litigation is normally conducted by 18 lawyers[;]” however, the rules should not be interpreted in a manner that excuses “mistakes by 19 those who proceed without counsel.” McNeil v. United States, 508 U.S. 106, 113 (1993). 20 Plaintiff’s Rule 4(m) period did not commence running until the Court authorized service 21 of process and the Clerk of Court gave the U.S. Marshals the service-related documents provided 22 by Plaintiff. See Thomas, 2015 U.S. Dist. LEXIS 96365 at *6. It is well past 90 days since 23 Plaintiff’s Rule 4(m) period commenced and there is no evidence that Plaintiff has made any 24 effort to ascertain whether service was effectuated upon Defendant Abumeri. See docket. 25 Notably, after CDCR filed its July 6, 2020 Notice (Doc. No. 20) and responded to the complaint, 26 Plaintiff appeared to abandon his action against Defendant Abumeri and continued with his case 27 against the defendants who were served. See docket. Further, while there is no evidence on the 28 docket whether the U.S. Marshal attempted and was unable to serve Defendant Abumeri, the —_—_——— EIR I IIE EIEN SSI IIE EE 1 } Court alerted Plaintiff in its September 24, 2021 Findings and Recommendations that Defendant 2 | Abumeri still had not been served. (Doc. No. 35 n. 2). Plaintiff did not inquire or take any action 3 | to effect service on Defendant Abumeri or request additional time to serve after the September 4 | 24, 2021 Findings and Recommendations. See docket. 5 In settling this action, Plaintiff may have well intended to settle all claims, not just against 6 | the CDCR defendants, but against Defendant Abumeri as well.! Plaintiff shall either indicate 7 | whether he wishes to voluntarily dismiss Defendant Abumeri pursuant to Fed. Rule Civ. P. 41, or 8 | shall good cause why Defendant Abumeri should not be dismissed under Rule 4(m). 9 Accordingly, it is ORDERED: 10 1. Within fourteen (14) days of the date on this Order, Plaintiff shall file a notice of 11 | voluntary dismissal as to Defendant Abumeri or show good cause why Defendant Abumeri 12 | should not be dismissed under Federal Rule of Civil Procedure 44m) and/or this case dismissed 13 | under Fed. R. Civ. P. 41(b) for Plaintiff's failure to prosecute this action. 14 2. Failure to timely respond to this order will result in the recommendation to the district 15 | court that this case be dismissed as to the sole remaining unserved Defendant. 16 17 xX / Dated: _ June 13, 2022 Llp a Vh. fareh Zackte 18 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 Understandably, Plaintiff may have elected not to pursue any claims against pursuant to Defendant Abumeri. According to the court’s June 5, 2020 screening order, the first amended complaint was proceeding on a deliberate 25 indifference claims against Defendant Abumeri. (Doc. No. 16 at 2). The screening order is not detailed and does not provide a clear explanation as to what specific action Defendant Abumeri took or failed to take to sustain an Eighth 26 Amendment deliberate indifference claim. (/d.). Defendant Abumeri is identified as a surgeon employed at Kern Neurological Institute. (Doc. No. 15 at 3). Significantly, there is nothing in the first amendment complaint to support a finding that Defendant Abumeri was a state actor to subject his to § 1983 liability. Further, Plaintiff 27 attributes liability to Defendant Abumeri for what he claims was “botched surgery” because he was left with a scar that runs from the front of his head to the back and hair loss. Ud. 7). The undersigned finds, the first amended 28 complaint alleges at most a claim of medical malpractice against Defendant Abumeri.