Banegas v. Doe 2 ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JUAN FERNANDO MEJIA BANEGAS, Case No.: 18-cv-2670-GPC-RBM 12 Plaintiff, ORDER ADOPTING REPORT AND 13 v. RECOMMENDATION, AND (1) DISSOLVING ORDER TO SHOW 14 JOHN DOE #1, CBP; JOHN DOE #2, CAUSE; (2) GRANTING PLAINTIFF CBP, 15 ADDITIONAL TIME TO FILE AND Defendants. SERVE AMENDED COMPLAINT; 16 AND (3) DIRECTING CLERK OF 17 COURT TO PROVIDE CIVIL RIGHTS/BIVENS FORM 18 COMPLAINT TO PLAINTIFF 19 [ECF No. 37] 20 21 Upon Plaintiff not filing a timely amended complaint, this Court issued Plaintiff an 22 Order to Show Cause (“OSC”) why the case should not be dismissed for failure to 23 prosecute. ECF No. 32. Plaintiff filed a timely Response to the OSC. ECF No. 33. 24 After the issue was referred to Magistrate Judge Ruth Bermudez Montenegro pursuant to 25 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 72.1(c), the Magistrate Judge submitted a 26 Report and Recommendation (“R&R”) on September 23, 2020. ECF No. 37. The R&R 27 1 recommended to: dissolve the OSC, grant Plaintiff an additional sixty days to file an 2 amended complaint, and grant Plaintiff sixty days to serve the named defendants (which 3 shall run from the date the amended complaint is filed). Id. No objection to the R&R 4 was filed. After consideration of the record and applicable law, and for the reasons 5 provided below, the Court ADOPTS the Magistrate Judge’s Report and 6 Recommendation in its entirety. 7 BACKGROUND 8 Plaintiff has generally alleged that two John Doe Defendants (collectively “Doe 9 Defendants”) who are U.S. Customs and Border Protection (“CBP”) officers used 10 excessive force in violation of his Fourth Amendment rights, and acted with deliberate 11 indifference to his serious medical needs. See Compl., ECF No. 1. Specifically, John 12 Doe #1 allegedly “punched [Plaintiff] in the face with a closed fist,” and John Doe #2 13 allegedly grabbed the back of Plaintiff’s head and slammed it into the concrete, causing 14 Plaintiff to lose consciousness. Id. at 4, 5.1 The Court has cautioned Plaintiff that he 15 “must identify John Doe #1 and John Doe #2 by name, and amend his Complaint to 16 substitute these individuals as proper parties in place of the Does.” Order Granting Mot. 17 for Leave, ECF No. 4 at 5 n.2. 18 On May 14, 2019, Plaintiff filed a Notice of Filing of Service Packet. ECF No. 15. 19 In the Notice, Plaintiff alleged the identities of the Doe Defendants as Michael Mansfield 20 (“Mansfield”) and Jose Meza (“Meza”). Id. However, Plaintiff could not identify which 21 person corresponded to John Doe #1 or #2 and “will therefore leave the Caption as Doe 22 Defendants at this time, expecting to clarify which Defendant is which, early in 23 discovery.” Id. at 1. 24 25 26 1 References to specific page numbers in a document filed in this case correspond to the page numbers assigned by the Court’s Electronic Case Filing (“ECF”) system. 27 1 While Plaintiff attempted to serve the Doe Defendants, the summonses were 2 returned unexecuted because the CBP station where the summonses were sent to has 3 “closed down permanently.” ECF Nos. 16, 17, 20, 21. On September 4, 2019, this Court 4 granted Plaintiff up through December 4, 2019 to serve the Doe Defendants, and directed 5 the Clerk of Court to re-issue summonses to Plaintiff’s Complaint and address U.S. 6 Marshal Form 285 to Mansfield and Meza. ECF No. 22. On October 10, 2019, Plaintiff 7 filed the summonses addressed to Mansfield and Meza, which were returned executed. 8 ECF Nos. 26, 27. However, on December 4, 2019, the U.S. Attorney contended that the 9 service is ineffective because neither individual is a named defendant. Notice of 10 Defective Service, ECF No. 29. The U.S. Attorney further stated that if and when 11 Mansfield and/or Meza are named as defendants in this case, “Plaintiff’s designated 12 process server is invited to contact the undersigned to facilitate service of the summons 13 and complaint.” Id. at 2. 14 On January 31, 2020, the Magistrate Judge directed Plaintiff to file an amended 15 complaint that substituted the identified officers for the Doe Defendants, the deadline for 16 filing being sixty days from the date of the order. ECF No. 31. Plaintiff did not file an 17 amended complaint as directed, and the Court ordered Plaintiff to show cause why the 18 case should not be dismissed for failure to prosecute. ECF No. 32. 19 Plaintiff filed a timely Response to the OSC, which states: “Due to the lack of legal 20 assistance, his mental illness, his lack of understanding of legal processes, and conditions 21 at the Eloy Detention Center [where Plaintiff is currently detained], [Plaintiff] has not 22 been able to file a timely amended Complaint.” ECF No. 33 at 4. Specifically, Plaintiff 23 argued that he does not understand legal proceedings, including the process of preparing 24 an amended complaint. Id. at 2. “He has no one at Eloy to help him write an amended 25 26 27 1 Complaint, conduct discovery, file pleadings, or try the case.”2 Id. Plaintiff has 2 attempted to find counsel but with no success. Id. at 4. In support of his mental illness, 3 Plaintiff attached medical records (indicating that he suffers from schizophrenia and 4 psychosis) and an order from the Immigration Court. Id. at 7–10. Finally, Plaintiff 5 alleged that the Eloy Detention Center has a coronavirus outbreak, making it difficult to 6 research, file pleadings, and litigate this case. Id. at 3–4. For such reasons, Plaintiff 7 requested that the Court not dismiss the case, and instead allow sixty days to file an 8 amended complaint after appointment of counsel.3 Id. at 4. 9 DISCUSSION 10 The R&R generally discussed that, considering Plaintiff’s circumstances described 11 in his Response, there is good cause to extend time for Plaintiff to file and serve an 12 amended complaint. ECF No. 37. The Court “may accept, reject, or modify, in whole or 13 in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 14 636(b)(1). No party filed an objection to the R&R. 15 The Court agrees with the Magistrate Judge’s R&R. Properly naming all parties in 16 a complaint ensures timely service of the summons and complaint, and if service is not 17 accomplished within ninety days, the court must dismiss the action without prejudice or 18 order that service be made within a specified time. See Fed. R. Civ. P. 4(m). At the same 19 time, if plaintiff establishes good cause for the failure of timely service, the court must 20 extend the time for service. Id. The court has broad discretion to extend the time for 21 service, and may consider factors such as actual notice of a lawsuit, prejudice to 22 23 2 Plaintiff drafted the initial Complaint at a different facility where fellow detainees 24 assisted him. He received help “for the limited purpose of drafting this Response and the 25 Motion for Appointment of Counsel.” ECF No. 33 at 2. 26 3 The Magistrate Judge denied Plaintiff’s request to appoint counsel. R&R, ECF No. 37 at 6–8. 27 1 defendant, or eventual service. See Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2 2007) (citation omitted). 3 The Court finds good cause for Plaintiff’s failure of timely service. Plaintiff’s 4 timely Response to the OSC explained why he had not filed an amended complaint in 5 compliance with the Magistrate Judge’s Order. Plaintiff is detained and proceeding pro 6 se, and alleges lack of legal knowledge and mental fitness to competently represent 7 himself. Pl.’s Resp., ECF No. 33 at 1–2. He has attempted to seek counsel but with no 8 success. Id. at 4; see also R&R, ECF No. 37 at 6–8 (denying Plaintiff’s motion for 9 appointment of counsel). In addition, Plaintiff alleges that the COVID-19 pandemic 10 makes it difficult for him to litigate. Pl.’s Resp., ECF No. 33 at 3–4. It is unlikely that 11 the CBP officers will suffer prejudice from a delay in service—it appears that they have 12 been on notice of the allegations in the Complaint. See Summons, ECF Nos. 26, 27; 13 Notice of Defective Service, ECF No. 29; cf. Efaw, 473 F.3d at 1041 (discussing 14 defendant’s actual notice of the lawsuit as a factor to extend service time). As such, 15 granting Plaintiff additional time to file and serve an amended complaint is appropriate. 16 Cf. Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987) (discussing how “strict time 17 limits . . . ought not to be insisted upon where restraints resulting from a pro se prisoner 18 plaintiff’s incarceration prevent timely compliance with court deadlines” (alteration in 19 original) (citation and quotations omitted)). 20 CONCLUSION 21 For reasons discussed above, the Court ADOPTS the Magistrate Judge’s Report 22 and Recommendation. IT IS HEREBY ORDERED: 23 1. The Court’s Order to Show Cause, ECF No. 32, is DISSOLVED; 24 2. The Court GRANTS Plaintiff an additional sixty (60) days from the date of 25 this Order to file an amended complaint that substitutes the Doe Defendants for the 26 27 1 individual defendants identified by Plaintiff. Specifically, the amended complaint must 2 || be filed on or before December 22, 2020; and 3 3. To the extent Plaintiff files an amended complaint, the Court GRANTS 4 || Plaintiff sixty (60) days to serve the named defendants pursuant to Federal Rule of Civil 5 || Procedure 4(m), which shall begin running from the date the amended complaint is filed. 6 IT IS FURTHER ORDERED: 7 1. The Court DIRECTS the Clerk of Court to provide a civil rights/Bivens 8 ||form complaint to Plaintiff, along with a copy of Plaintiffs initial Complaint, ECF No. 1, 9 his address of record; and 10 2. The Court NOTIFIES the Clerk of Court that, upon Plaintiff's filing of an 11 ||amended complaint, the Court will issue separate orders directing the Clerk of Court to 12 |/issue a summons as to Plaintiff's amended complaint and directing the U.S. Marshals 13 || Service to contact the U.S. Attorney’s Office to effectuate service of the summons and 14 ||amended complaint, consistent with the U.S. Attorney’s agreement. See Notice of 15 || Defective Service, ECF No. 29. 16 IT IS SO ORDERED. 17 18 || Dated: October 23, 2020 <= 20 United States District Judge 21 22 23 24 25 26 27 28 18-cv-2670-GPC-RBM