(PC) Gomez v. Unknown ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NEXIS RENE GOMEZ, Case No. 2:20-cv-02259-KJM-JDP (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 v. THAT THIS CASE BE DISMISSED WITHOUT PREJUDICE FOR FAILURE TO 14 UNKNOWN, EFFECT SERVICE ON DEFENDANT 15 Defendant. OBJECTIONS DUE WITHIN FOURTEEN DAYS 16 17 Plaintiff, a state prisoner, is proceeding pro se with a civil rights action pursuant to 42 18 U.S.C. § 1983. Despite multiple opportunities to do so, plaintiff has not been able to provide the 19 U.S. Marshal with sufficient information to effect service on the unknown defendant. Thus, 20 under Federal Rule of Civil Procedure 4(m), I will recommend that this action be dismissed. 21 Efforts to identify the unknown defendant are well documented. See ECF Nos. 8, 11, 16, 22 19, 20, 22, 24, 29, & 33. Suffice it to say, after almost four years, plaintiff has been unable to 23 ascertain the identity of the individual who acted as a scheduler at High Desert State Prison 24 between January and February 2012. In my latest order, I notified plaintiff that if a defendant is 25 not served within ninety days after a complaint is filed, the court must, after notice to the plaintiff, 26 dismiss the action without prejudice. Fed. R. Civ. P. 4(m). ECF No. 33. In the same order, I 27 provided plaintiff an additional thirty days to notify the court of the defendant’s identity, and I 28 explained that should he fail to do so, I would recommend dismissal. Id. Plaintiff has neither 1 | responded to the latest order nor demonstrated that he has learned the defendant’s identity. 2 Accordingly, I recommend that this action be dismissed pursuant to Federal Rule of Civil 3 || Procedure 4(m). See Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) overruled on other 4 | grounds by Sandin vy. Conner, 515 U.S. 472, 483-84 (1995)); Wilson v. Moreno, No. ED-CV-14- 5 | 513-JAK (DFM), 2016 WL 827702, at *5 (C.D. Cal. Feb. 8, 2016) (“Courts regularly dismiss 6 | actions for failure to make service under Fed. R. Civ. P. 44m) when a plaintiff provides the USMS 7 | with an inaccurate or obsolete address for a defendant.”); Hunter v. Galvan, No. CV-21-01228- 8 | PHX-SRB (ESW), 2021 WL 5988597, at *1 (D. Ariz. Dec. 17, 2021) (“[W]here a prisoner fails 9 | to provide the USMS with accurate and sufficient information to effect service of the summons 10 | and complaint, a court’s sua sponte dismissal of the unserved defendant(s) is appropriate.”). 11 Accordingly, it is hereby RECOMMENDED that: 12 1. This action be dismissed without prejudice for failure to serve the defendant within the 13 | time specified under Federal Rule of Civil Procedure 4(m). 14 2. The Clerk of Court be directed to close this matter. 15 These findings and recommendations are submitted to the United States District Judge 16 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 17 | after being served with these findings and recommendations, any party may file written 18 | objections with the court and serve a copy on all parties. Such a document should be captioned 19 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 20 | objections shall be served and filed within fourteen days after service of the objections. The 21 | parties are advised that failure to file objections within the specified time may waive the right to 22 || appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 23 | v. Yist, 951 F.2d 1153 (9th Cir. 1991). 24 95 IT IS SO ORDERED. 26 | q Sty — Dated: _ October 7, 2024 QH——— 27 JEREMY D,. PETERSON UNITED STATES MAGISTRATE JUDGE