(PC) Howard v. Brown, Jr.

[6] 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA [9] 10 MICHAEL ANTHONY HOWARD, Case No. 1:18-cv-01710-DAD-EPG (PC) 11 Plaintiff, ORDER FOR PLAINTIFF TO SHOW CAUSE WHY THE COURT SHOULD NOT 12 v. ISSUE FINDINGS AND RECOMMENDATIONS, 13 SGT. ENCINAS, et al., RECOMMENDING THAT DEFENDANTS LENO AND W. HANNA BE DISMISSED 14 Defendants. FROM THIS ACTION, WITHOUT PREJUDICE, PURSUANT TO FEDERAL 15 RULE OF CIVIL PROCEDURE 4(M) 16 TWENTY-ONE DAY DEADLINE [17] 18 Michael Howard (“Plaintiff”) is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983 , which includes state law 20 claims. 21 This case now proceeds “on Plaintiff’s complaint filed November 19, 2018 (ECF No. 22 1), on the following claims: Plaintiff’s claim against defendants J. Flores, J. Alejo, R. Nichols, 23 H. Rodriguez, A. Loza, Leno, and A. Encinas for excessive force in violation of the Eighth 24 Amendment; Plaintiff’s claim against defendant Tumacder for failure to protect in violation of 25 the Eighth Amendment; Plaintiff’s claim for deliberate indifference to serious medical needs in 26 violation of the Eighth Amendment against defendants J. Flores, J. Alejo, R. Nichols, H. 27 Rodriguez, A. Loza, Leno, A. Encinas, Tumacder, Soto, [W.] Hanna, and Blevins; Plaintiff’s [28] 1 Bane Act claim against defendants J. Flores, J. Alejo, R. Nichols, H. Rodriguez, A. Loza, Leno, 2 and A. Encinas; and Plaintiff’s assault and battery claims against defendants J. Flores, J. Alejo, 3 R. Nichols, H. Rodriguez, A. Loza, Leno, and A. Encinas.” (ECF No. 17, p. 1). 4 Neither defendant Leno nor defendant W. Hanna1 has been served. The summons 5 directed to defendant Leno was returned unexecuted. The United States Marshals Service 6 conducted a review of the relevant duty roster, but “[t]here was no CO named Leno or anything 7 close to that working on the day of the incident.” (ECF No. 24). Additionally, the Marshals 8 Service certified that it was unable to locate defendant Leno. (Id.). 9 As to defendant W. Hanna, evidence has been submitted that was no W. Hanna working 10 at the institution when the incident occurred, and that there is still no W. Hanna employed at 11 the institution. (ECF No. 28-1, pgs. 1-2, ¶ 2). 12 Pursuant to Federal Rule of Civil Procedure 4(m), 13 If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the 14 action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the 15 court must extend the time for service for an appropriate period. 16 Fed. R. Civ. P. 4(m). 17 In cases involving a plaintiff proceeding in forma pauperis, the Marshals Service, upon 18 order of the Court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “‘[A]n 19 incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal 20 for service of the summons and complaint and ... should not be penalized by having his action 21 dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to 22 perform his duties….’” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett 23 v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990) (alterations in original)), overruled on other 24 grounds by Sandin v. Connor, 515 U.S. 472 (1995). “So long as the prisoner has furnished the 25 information necessary to identify the defendant, the marshal’s failure to effect service is 26 ‘automatically good cause….’” Walker, 14 F.3d at 1422 (quoting Sellers v. United States, 902 [27] 1 F. Hanna has waived service and filed a motion to dismiss, but W. Hanna has not yet been served. [28] 1 F.2d 598, 603 (7th Cir.1990)). However, where a plaintiff proceeding in forma pauperis fails 2 to provide the Marshals Service with accurate and sufficient information to effect service of the 3 summons and complaint, dismissal of the unserved defendant is appropriate. Walker, 14 F.3d 4 at 1421-22. 5 As discussed above, neither defendant Leno nor defendant W. Hanna has been served, 6 and it appears that there was no “Leno” or “W. Hanna” working at the institution on the day of 7 the incident alleged in the complaint. Thus, Plaintiff has failed to provide the Marshals Service 8 with accurate and sufficient information to effect service of the summons and complaint on 9 these defendants. The Court notes that Plaintiff has not provided any additional identifying 10 information for these defendants, has not requested the issuance of a third party subpoena so 11 that he can attempt to find additional information, and has not moved to substitute anyone in 12 place of these defendants. 13 Accordingly, pursuant to Rule 4(m), the Court will provide Plaintiff with an opportunity 14 to show cause why defendants Leno and W. Hanna should not be dismissed from the case 15 because of Plaintiff’s failure to provide the Marshal with accurate and sufficient information to 16 effect service of the summons and complaint on these defendants. If Plaintiff is unable to 17 provide the Marshal with additional information, and if he does not request the issuance of a 18 third party subpoena so that he can attempt to identify these defendants, the Court will issue 19 findings and recommendations to the assigned district judge, recommending that these 20 defendants be dismissed from the case, without prejudice. 21 Accordingly, based on the foregoing, it is HEREBY ORDERED that: 22 1. Within twenty-one (21) days from the date of service of this order, Plaintiff shall 23 show cause why the Court should not issue findings and recommendations to the 24 assigned district judge, recommending that defendants Leno and W. Hanna be 25 dismissed from this action, without prejudice, pursuant to Federal Rule of Civil 26 Procedure 4(m); and 27 /// 28 /// 1 2. Failure to respond to this order may result in defendants Leno and W. Hanna being 2 dismissed from this action, without prejudice. [3] IT IS SO ORDERED. Dated: _ February 25, 2020 [sf hey — 6 UNITED STATES MAGISTRATE JUDGE