(PC) Ramos v. Mayfield

[6] 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA [9] 10 LEOBARDO ERIC RAMOS, Case No. 1:21-cv-01036-ADA-EPG (PC) 11 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANT 12 v. DOE BE DISMISSED FROM THIS ACTION, WITHOUT PREJUDICE, PURSUANT TO 13 MAYFIELD, et al., FEDERAL RULE OF CIVIL PROCEDURE 4(M) 14 Defendants. (ECF Nos. 57 & 74) [15] OBJECTIONS, IF ANY, DUE WITHIN 16 FOURTEEN DAYS [17] 18 I. BACKGROUND 19 Leobardo Ramos (“Plaintiff”) is a state prisoner proceeding pro se and in forma 20 pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983 . This case is currently 21 proceeding on Plaintiff’s Eighth Amendment excessive force claim against defendant Mayfield 22 and defendant Doe based on allegations that they directed Plaintiff to be taken into an empty 23 cell, slammed Plaintiff onto his shoulder, and then repeatedly kicked and punched him. (ECF 24 Nos. 10, 12, & 21). 25 Defendant Doe has not been served. On August 5, 2022, the Court set a deadline of 26 December 2, 2022, for Plaintiff to file a motion to substitute the named individual in place of 27 defendant Doe. (ECF No. 57). Plaintiff failed to timely file the motion. The Court 28 nevertheless granted Plaintiff additional time, up to and including February 6, 2023, to file a 1 motion to substitute the named individual in place of defendant Doe. (ECF No. 74). 2 Plaintiff’s deadline to file a motion to substitute has passed, and Plaintiff has not filed a 3 motion to substitute or identified defendant Doe. As Plaintiff has failed to identify defendant 4 Doe, the Court will recommend that defendant Doe be dismissed from this action, without 5 prejudice, because of Plaintiff’s failure to provide the Court and the United States Marshals 6 Service (“the Marshal”) with accurate and sufficient information to effect service of the 7 summons and complaint on defendant Doe within the time period prescribed by Federal Rule of 8 Civil Procedure 4(m). 9 II. LEGAL STANDARDS 10 Pursuant to Federal Rule of Civil Procedure 4(m), 11 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 12 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 13 court must extend the time for service for an appropriate period. 14 Fed. R. Civ. P. 4(m). 15 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of 16 the Court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “‘[A]n 17 incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal 18 for service of the summons and complaint and … should not be penalized by having his action 19 dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to 20 perform his duties….’” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett 21 v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990) (alterations in original)), overruled on other 22 grounds by Sandin v. Connor, 515 U.S. 472 (1995). “So long as the prisoner has furnished the 23 information necessary to identify the defendant, the marshal’s failure to effect service is 24 ‘automatically good cause….’” Walker, 14 F.3d at 1422 (quoting Sellers v. United States, 902 25 F.2d 598 , 603 (7th Cir.1990)). However, where a plaintiff proceeding in forma pauperis fails 26 to provide the Marshal with accurate and sufficient information to effect service of the 27 summons and complaint, dismissal of the unserved defendant is appropriate. Walker, 14 F.3d 28 at 1421-22 . 1 III. ANALYSIS 2 Plaintiff was provided with a deadline to file a motion to substitute the named defendant 3 in place of defendant Doe. (ECF No. 57, p. 5). The Court also informed Plaintiff that he “may 4 request documents from defendant Mayfield in order to identify the doe defendant. Plaintiff 5 may also request a subpoena duces tecum if this information is not available from defendant 6 Mayfield.” (Id.). Plaintiff was warned that if he failed to file a motion to substitute by the 7 deadline, defendant Doe may be dismissed from this case. (Id. at p. 5-6). The Court also 8 granted Plaintiff additional time, up to and including February 6, 2023, to file a motion to 9 substitute. (ECF No. 74). However, Plaintiff’s extended deadline has passed, and Plaintiff has 10 not identified defendant Doe or filed a motion to substitute a named individual in place of 11 defendant Doe. Plaintiff did file two late motions for an extension of his deadline to file a 12 motion to substitute (ECF Nos. 101 & 107), but Plaintiff’s motions were denied (ECF Nos. 103 13 & 108), and Plaintiff has not show good cause for failing to timely file a motion to substitute so 14 that defendant Doe could be identified and served. 15 As Plaintiff has failed to provide the Court and the Marshal with accurate and sufficient 16 information to effect service of the summons and complaint on defendant Doe within the time 17 period prescribed by Federal Rule of Civil Procedure 4(m), the Court will recommend that 18 defendant Doe be dismissed from the action, without prejudice.1 19 IV. RECOMMENDATION 20 Based on the foregoing, the Court HEREBY RECOMMENDS that defendant Doe be 21 dismissed from this action, without prejudice, because of Plaintiff’s failure to provide the Court 22 and the Marshal with accurate and sufficient information to effect service of the summons and 23 complaint on defendant Doe within the time period prescribed by Federal Rule of Civil 24 Procedure 4(m). 25 These findings and recommendations are submitted to the United States district judge 26 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636 (b)(1). Within fourteen [27] 28 1 The Court notes that this case continues to proceed against defendant Mayfield. 1 || (14) days after being served with these findings and recommendations, any party may file 2 || written objections with the Court. Such a document should be captioned “Objections to 3 || Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be 4 || served and filed within fourteen (14) days after service of the objections. The parties are 5 || advised that failure to file objections within the specified time may result in the waiver of rights 6 |}on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. 7 || Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). [8] 5 IT IS SO ORDERED. 10 ll Dated: _May 22, 2023 [Je heey — 11 UNITED STATES MAGISTRATE JUDGE