(PC) Mills v. Cuellar

[6] 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA [9] 10 JAKAN CHAMEL MILLS, Case No. 1:20-cv-01247-NONE-EPG (PC) 11 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANT 12 v. DIAZ BE DISMISSED FROM THIS ACTION, WITHOUT PREJUDICE, 13 R. CUELLAR, et al., PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 4(M) 14 Defendants. (ECF NOS. 19 & 21) [15] OBJECTIONS, IF ANY, DUE WITHIN 16 FOURTEEN DAYS [17] 18 I. BACKGROUND 19 Jakan Mills (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in 20 this civil rights action filed pursuant to 42 U.S.C. § 1983 . 21 This case now proceeds “on Plaintiff’s complaint filed September 3, 2020 (ECF 1), on 22 Plaintiff’s Eighth Amendment excessive force claim against defendants Cuellar and Diaz.” 23 (ECF No. 15, p. 1). All other claims and defendants were dismissed. (ECF No. 23). 24 Defendant Diaz has not been served. On December 9, 2020, the Court received an 25 Amended Notice of E-Service Waiver from the California Department of Corrections and 26 Rehabilitation. (ECF No. 19). According to the waiver, defendant R. Diaz is deceased. Given 27 this representation, the Court gave Plaintiff thirty days “to either: a) File a motion to open 28 limited discovery; b) File a motion to substitute R. Diaz’s successor or representative in place 1 of R. Diaz and provide the Court with the address for R. Diaz’s successor or representative, so 2 that the successor or representative can be served with the summons, complaint, and motion to 3 substitute; or c) Voluntarily dismiss R. Diaz.” (ECF No. 21, p. 3). This thirty-day period has 4 expired, and Plaintiff has not responded to this order. 5 Accordingly, the Court will recommend that defendant Diaz be dismissed from this 6 action, without prejudice, because of Plaintiff’s failure to provide the United States Marshals 7 Service (“the Marshal”) with accurate and sufficient information to effect service of the 8 summons and complaint on defendant Diaz within the time period prescribed by Federal Rule 9 of Civil Procedure 4(m). 10 II. LEGAL STANDARDS 11 Pursuant to Federal Rule of Civil Procedure 4(m), 12 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 13 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 14 court must extend the time for service for an appropriate period. 15 Fed. R. Civ. P. 4(m). 16 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of 17 the Court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “‘[A]n 18 incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal 19 for service of the summons and complaint and … should not be penalized by having his action 20 dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to 21 perform his duties….’” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett 22 v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990) (alterations in original)), overruled on other 23 grounds by Sandin v. Connor, 515 U.S. 472 (1995). “So long as the prisoner has furnished the 24 information necessary to identify the defendant, the marshal’s failure to effect service is 25 ‘automatically good cause….’” Walker, 14 F.3d at 1422 (quoting Sellers v. United States, 902 26 F.2d 598, 603 (7th Cir.1990)). However, where a plaintiff proceeding in forma pauperis fails 27 to provide the Marshal with accurate and sufficient information to effect service of the 28 summons and complaint, dismissal of the unserved defendant is appropriate. Walker, 14 F.3d 1 at 1421-22 . 2 III. ANALYSIS 3 The Court received an Amended Notice of E-Service Waiver from the California 4 Department of Corrections and Rehabilitation indicating that defendant Diaz was not waiving 5 personal service because he is deceased. (ECF No. 19). The Court then gave Plaintiff the 6 opportunity to file a motion to open limited discovery or to provide the Court with the address 7 for R. Diaz’s successor or representative (so that the successor or representative could be 8 served), but Plaintiff did not do either. 9 As Plaintiff has failed to provide the Marshal with accurate and sufficient information 10 to effect service of the summons and complaint on defendant Diaz (or his successor or 11 representative) within the time period prescribed by Federal Rule of Civil Procedure 4(m), the 12 Court will recommend that defendant Diaz be dismissed from the action, without prejudice. 13 IV. RECOMMENDATION 14 Based on the foregoing, the Court HEREBY RECOMMENDS that defendant Diaz be 15 dismissed from this action, without prejudice, because of Plaintiff’s failure to provide the 16 Marshal with accurate and sufficient information to effect service of the summons and 17 complaint on defendant Diaz (or his successor or representative) within the time period 18 prescribed by Federal Rule of Civil Procedure 4(m). 19 These findings and recommendations are submitted to the United States district judge 20 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636 (b)(1). Within fourteen 21 (14) days after being served with these findings and recommendations, any party may file 22 written objections with the court. Such a document should be captioned “Objections to 23 Magistrate Judge's Findings and Recommendations.” Any reply to the objections shall be 24 served and filed within seven (7) days after service of the objections. 25 \\\ 26 \\\ 27 \\\ 28 \\\ 1 The parties are advised that failure to file objections within the specified time may 2 in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 3 || 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). [4] 5 IT IS SO ORDERED. ° Dated: _February 12, 2021 [spe ey —— 7 UNITED STATES MAGISTRATE JUDGE