(PC) Rodriguez v. Solano State Prison ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTONIO RODRIGUEZ, No. 2:21-cv-00622-SCR-P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 SOLANO STATE PRISON, et al., 15 Defendants. 16 17 Plaintiff Antonio Rodriguez, a state prisoner, proceeds pro se and in forma pauperis with a 18 second amended civil rights complaint. (ECF No. 21.) On March 21, 2023, the court ordered that 19 service of plaintiff’s second amended complaint was warranted for defendant nurses N. Sabati 20 and G. Coder (ECF No. 24.) On April 11, 2024, plaintiff requested an extension of time for the 21 U.S. Marshal to serve the defendants. (ECF No. 39.) While that motion is now likely moot for the 22 reasons explained below, to the extent it matters, and good cause appearing, plaintiff’s request for 23 an extension of time is granted. However, the U.S. Marshal service has been unable to locate 24 defendant Coder with the information provided by plaintiff. Plaintiff’s claims against defendant 25 Coder should be dismissed without prejudice at this time. 26 Extension of Time for Service 27 Federal Rule of Civil Procedure 4 provides: 28 If a defendant is not served within 90 days after the complaint is filed, 1 the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order 2 that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for 3 service for an appropriate period. 4 Fed. R. Civ. P. 4. 5 Because plaintiff proceeds in forma pauperis, the court ordered the U.S. Marshal service 6 to serve the summonses and complaints on the defendants. See Fed. R. Civ. P. 4(c)(3). “[A]n 7 incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal 8 for service of the summons and complaint, and … should not be penalized by having his or her 9 action dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed 10 to perform the duties required.” Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). “So long 11 as the prisoner has furnished the information necessary to identify the defendant, the marshal’s 12 failure to effect service is automatically good cause.” Walker v. Sumner, 14 F.3d 1415, 1422 (9th 13 Cir. 1994) (internal quotation marks and citation omitted), abrogated on other grounds by Sandin 14 v. Connor, 515 U.S. 472, 115 (1995). Accordingly, plaintiff’s request for an extension of time for 15 service (ECF No. 39) is granted.1 16 Status of Service and Recommendation to Dismiss Coder 17 On August 26, 2024, a third amended “CDCR Notice of E-Service Waiver” was filed 18 indicating defendant Sabati intends to waive personal service.2 (ECF No. 47.) Like the previous 19 notices filed, the third amended Notice of E-Service Waiver indicates CDCR cannot waive 20 service on behalf of defendant Coder, who has not been located. (Id.; see also ECF Nos. 28, 42, 21 43.) 22 On May 22, 2023, the court informed plaintiff that process directed to defendant Coder 23 had been returned unserved because CDCR could not identify the individual for service. (ECF 24 No. 30.) Plaintiff was directed to provide additional information to serve defendant Coder at that 25 time. (Id.) Plaintiff complied with the order (ECF No. 35), but the U.S. Marshal service was still 26 1 Now that one defendant has waived service and the other cannot be located, see below, 27 plaintiff’s motion for extension of time is likely moot as a practical matter. 2 A return of service filed on July 31, 2024, indicates defendant Sabati was also served by 28 personal service. (ECF No. 45.) 1 | unable to locate defendant Coder with the further information provided by plaintiff. (See ECF 2 | Nos. 42, 43, 47.) 3 Thus, plaintiff was given notice that defendant Coder could not be found and has had the 4 || opportunity to provide additional information to serve defendant Coder. However, plaintiff has 5 || not provided sufficient information to locate defendant Coder for service of process. Accordingly, 6 | plaintiff's claims against defendant Coder should be dismissed without prejudice pursuant to 7 || Federal Rule of Civil Procedure 4(m) at this time. 8 In accordance with the above, IT IS ORDERED as follows: 9 1. The Clerk of the Court shall assign a district judge to this case. 10 2. Plaintiffs motion for an extension of time for service (ECF No. 39) is granted. 1] In addition, for the reasons set forth above, IT IS RECOMMENDED that plaintiff's 12 | claims against defendant Coder be dismissed without prejudice under Rule 4(m) of the Federal 13 | Rules of Civil Procedure. 14 These findings and recommendations are submitted to the United States District Judge 15 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one (21) 16 | days after being served with these findings and recommendations, plaintiff 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 Recommendations.” Plaintiff is advised that 19 | failure to file objections within the specified time may waive the right to appeal the District 20 || Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 21 || Dated: September 16, 2024 fork 23 SEAN C. RIORDAN 24 UNITED STATES MAGISTRATE JUDGE 25 26 27 28