(PC) Hunter v. Rosales

[7] 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA [10] 11 NATHAN HUNTER, Case No. 1:22-cv-00219-SKO (PC) 12 Plaintiff, ORDER DISCHARGING ORDER TO SHOW CAUSE 13 v. (Doc. 29) 14 I. ROSALES, et al., FINDINGS AND RECOMMENDATIONS 15 Defendants. TO DENY PLAINTIFF’S MOTION AND TO DISMISS DEFENDANT C. RILEY 16 FOR PLAINTIFF’S FAILURE TO EFFECT SERVICE OF PROCESS [17] (Doc. 30) [18] Clerk of the Court to Assign District Judge [19] 20 Plaintiff Nathan Hunter is a state prisoner appearing pro se and in forma pauperis in this 21 action pursuant to 42 U.S.C. § 1983 . This action proceeds on Plaintiff’s Eighth Amendment 22 excessive force and failure to protect claims against Defendants R. Covarrubias, R. Figueroa, J. 23 Guardado-Mendez,1 C. Riley, I. Rosales, and R. Volker. 24 I. RELEVANT PROCEDURAL BACKGROUND 25 On February 28, 2023, the Court issued its Order Finding Service of Complaint 26 Appropriate. (Doc. 7.) Service was to be effected upon Defendants Covarrubias, Figueroa, 27 Guardado-Mendez, Riley, Rosales, and Volker using the Court’s e-service pilot program. (Id. at 28 1 Sued erroneously as “Gaurdodo-Mendez.” 1 2.) On April 19, 2023, the Court received a notice of intent not to waive personal service as to 2 Defendants C. Riley and R. Volker.2 (Doc. 17.) On May 23, 2023, the United States Marshal 3 advised the Court that service could not be effected on Defendant C. Riley. (Doc. 21.) 4 On August 8, 2023, the Court issued its Order to Show Cause (“OSC”) Why Defendant 5 Riley Should Not Be Dismissed From This Action for Failure to Provide Sufficient Information 6 to Effect Service. (Doc. 29.) The OSC noted that Defendant Riley was no longer employed by the 7 California Department of Corrections and Rehabilitation (“CDCR”) and that the last known 8 address for Riley—a residential address in Bakersfield—was no longer valid. (Id. at 2.) Thus, the 9 Marshal’s attempt to serve Defendant Riley was unsuccessful. (Id. at 3.) As a result, Plaintiff was 10 advised he had failed to provide the Marshal with accurate and sufficient information to 11 effectuate service. (Id.) Plaintiff was afforded the opportunity to show cause why Riley should 12 not be dismissed from this action, including “providing additional information that will assist the 13 United States Marshal in locating Defendant Riley for service of process.” (Id.) The OSC directed 14 Plaintiff to do so within 30 days of the date of service of the order. (Id.) 15 On August 28, 2023, Plaintiff filed a document titled “Plaintiff Motion to Keep C. Riley 16 as Defendant on this Civil Rights Action.” (Doc. 30.) On that same day, Defendants Covarrubias, 17 Figueroa, Guardado-Mendez, Rosales, and Volker filed an answer to the complaint. (Doc. 31.) 18 II. DISCUSSION 19 As Plaintiff was previously advised, Federal Rule of Civil Procedure 4(m) provides as 20 follows: [21] If a defendant is not served within 90 days after the complaint is filed, the court— 22 on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a 23 specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. [24] 25 Fed. R. Civ. P. 4(m). Because Defendant Riley has not been timely served with the summons and 26 complain, and Plaintiff has not provided the Court with sufficient information to effect service of [27] 2 Waivers of Service were returned executed as to Defendants Covarrubias, Figueroa, Guardado-Mendez, 28 Rosales and Volker. (Docs. 18 & 22.) 1 process on Riley by the United States Marshal, this Court will recommend Plaintiff’s motion be 2 denied and that Defendant Riley be dismissed from this action without prejudice. 3 Plaintiff’s motion or response to the OSC seeks to “Keep C. Riley” as a named defendant 4 in this action. (Doc. 30.) Under the subheading titled “Cause,” Plaintiff asserts five reasons for his 5 contention Defendant Riley should not be dismissed from this action: 6 1. Riley was employed by CDCR at Kern Valley State Prison (“KVSP”) on 7 November 24, 2019,3 and violated Plaintiff’s rights under the Eighth 8 Amendment 9 2. Plaintiff directs “the Court to Document 11 Page 2 Line 20 ‘Plaintiff need not 10 attempt service on the defendant and not request waiver of service. Any 11 presonlly [sic] information of the named defendants in this civil rights action 12 outside of these names, Plaintiff believe by participate in E-service pilot 13 program was set up to address these [indecipherable] including cost and time’” 14 3. Plaintiff objects to the finding he provided the United States Marshal with 15 inaccurate and insufficient information to effect service of the summons and 16 complaint. He states “[o]utside of providing there [sic] names Defendants all 17 presonllay [sic] information come from CDCR and OAG” 18 4. Plaintiff has not been provided “any information when Defendant C. Riley stop 19 being employed by CDCR at KVSP or how long the other parties was aware of 20 the information during the time extent CDCR request and the two time request 21 by OAG office” 22 5. Plaintiff requests Defendant Riley remain a named defendant “because 23 Defendant C. Riley was part of attack with the other named Defendants that 24 [resulted] in Plaintiff suffer serious injury and violating Plaintiff civil rights” 25 (Doc. 30 at 2-3.) None of these reasons address the Marshal’s inability to personally serve a 26 defendant it cannot locate. [27] 3 Plaintiff’s complaint states the events giving rise to his excessive force claims occurred on “November 28 18th, 2019.” (See Doc. 1 at 3.) 1 First, the fact Riley was employed by CDCR at the time of the incident giving rise to 2 Plaintiff’s claim does not override the requirement that this Court “must dismiss the action 3 without prejudice against” a defendant who has not been served with the complaint. Fed. R. Civ. 4 P. 4 (m). 5 Second, the Court is unclear regarding Plaintiff’s reference to “Document 11 Page 2 Line 6 20.” The eleventh entry on the docket is the CDCR’s request for an extension of time within 7 which to file a notice of e-service waiver—it is an unlined, single page document. The e-service 8 pilot program eases a pro se civil rights plaintiff’s burden regarding service of process; it does not 9 omit or change the fact Plaintiff is required to provide adequate and sufficient information to 10 ensure the United States Marshal can effect service on a named defendant. Walker v. Sumner, 14 11 F.3d 1415, 1422 (9th Cir. 1994) (where a pro se plaintiff fails to provide the Marshal with 12 accurate and sufficient information to effect service of process, a district court’s dismissal of 13 unserved defendant is appropriate); Howard v. Encinas, No. 1:18-cv-01710-DAD-EPG (PC), [14] 2020 WL 2489634 , *2 (E.D. Cal. May 14, 2020) (“As Plaintiff has failed to provide the Marshal 15 with accurate and sufficient information to effect service of summons and complaint on defendant 16 Leno and W. Hanna,” where the institution of confinement at the time of the incident reported 17 neither “Leno” nor “W. Hanna” was employed at that institution, the Court recommended 18 dismissal of those defendants) (recommendation adopted July 10, 2020, 2020 WL 3893633 ); 19 McDermid v. Villanueva, No. EDCV 15-1853 JGB (AS), 2020 WL 1979271 , *8, n. 18 (C.D. Cal. 20 Mar. 13 , 2020) (“dismissal pursuant to Rule 4(m) is still appropriate because Plaintiff, after being 21 informed that Defendant Villanueva no longer worked for the BOP, failed to provide the Marshal 22 with sufficient information to serve Defendant Villanueva”) (recommendation adopted April 17, 23 2020, 2020 WL 1975026 ). 24 Third, Plaintiff contends he provided the names of the involved defendants and any 25 additional information should come from “CDCR and OAG.” The CDCR provided additional 26 information concerning “C. Riley”—it indicated Defendant Chad Riley has “Separated service” 27 and was no longer employed by CDCR. (Doc. 17.) The United States Marshal then attempted to 28 serve Riley at the last known address provided to it consisting of a residential street address in 1 Bakersfield; they were advised Riley no longer lives at the address and had not lived at that 2 address for five years. (Doc. 21.) 3 Fourth, Plaintiff contends that because he has not been provided “any information when 4 Defendant C. Riley stop being employed by CDCR at KVSP” or the length of time that 5 information was known to “the other parties,” this amounts to good cause for the retention of 6 Defendant Riley in this action. The Court does not agree. The length of time since Riley’s 7 separation from service at CDCR or how long CDCR has known that information is not relevant. 8 The fact remains that Defendant Riley cannot be served with the summons and complaint until 9 Plaintiff provides some additional identifying information. The United States Marshal has 10 exhausted the available avenues for attempting to locate and serve Defendant Riley. It is 11 Plaintiff’s obligation to provide information necessary to identify and locate a given defendant 12 which Plaintiff has not done and apparently is unable to do. 13 Finally, Plaintiff contends Defendant Riley should remain a part of the action because he 14 was “part of attack with the other named Defendants” giving rise to Plaintiff’s complaint. The 15 Court is not seeking to dismiss Defendant Riley because he was not involved in the events of 16 November 2019. The Court recommends that Defendant Riley be dismissed because service of 17 process has not been and cannot be effected upon him. Fed. R. Civ. P. 4(m). 18 In sum, because Plaintiff has failed to provide adequate and sufficient information to 19 effect service of process upon Defendant C. Riley, dismissal of Defendant Riley for a failure to 20 serve is recommended. 21 III. CONCLUSION AND RECOMMENDATIONS 22 Accordingly, IT IS HEREBY ORDERED that: 23 1. The OSC issued August 8, 2023 (Doc. 29) is DISCHARGED; and 24 2. The Clerk of the Court is DIRECTED to randomly assign a district judge to this 25 action. 26 Further, for the reasons given above, IT IS HEREBY RECOMMENDED that: 27 1. Plaintiff’s “Motion to Keep C. Riley as Defendant” (Doc. 30) be DENIED; and 28 2. Defendant Riley be DISMISSED from this action, without prejudice, pursuant to Rule 1 4(m) of the Federal Rules of Civil Procedure. 2 These Findings and Recommendations will be submitted to the district judge assigned to 3 this case, pursuant to 28 U.S.C. § 636 (b)(l). Within 14 days of the date of service of these 4 Findings and Recommendations, a party may file written objections with the Court. The 5 document should be captioned, “Objections to Magistrate Judge’s Findings and 6 Recommendations.” Failure to file objections within the specified time may result in waiver of 7 rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 8 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). [9] IT IS SO ORDERED. [10] 11 Dated: August 29, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE