(PC) Verduzco v. Marin et al, No. 1:2014cv01387 - Document 31 (E.D. Cal. 2015)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Barbara A. McAuliffe on 12/22/2015 recommending Dismissal of action without prejudice for failure to serve Defendants. Referred to Judge Anthony W. Ishii; Objections to F&R due by 1/15/2016. (Lundstrom, T)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 9 SALVADOR GONZALEZ VERDUZCO, 10 Plaintiff, 11 v. 12 MARIN, et al., 13 Defendants. 14 15 1:14-cv-01387-AWI-BAM (PC) FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION WITHOUT PREJUDICE FOR FAILURE TO SERVE DEFENDANTS (ECF No. 28) TWENTY-ONE-DAY DEADLINE FINDINGS AND RECOMMENDATIONS 16 17 ) ) ) ) ) ) ) ) ) ) ) ) Plaintiff Salvador Gonzalez Verduzco (“Plaintiff”) is a state prisoner proceeding pro se 18 and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action 19 proceeds on Plaintiff’s claims for excessive force in violation of the Eighth Amendment against 20 Defendants Marin and Rios. 21 On December 1, 2015, the Court issued an order to show cause why this action should 22 not be dismissed, since the United States Marshal was twice unable to effect service of process 23 on either of the Defendants based on the information Plaintiff provided. (ECF No. 28.) On 24 December 17, 2015, Plaintiff filed a response to the order to show cause, in which he mainly 25 argues that his action is not improper and that his claims are meritorious. The Court takes no 26 position on those matters. 27 28 Regarding service of process, Plaintiff states that it is not his fault that the Marshal and the special investigators that assisted them have been unable to identify the Defendants for 1 1 service. He further states that he is not a private investigator or detective and so cannot 2 investigate the Defendants’ identities any further. Plaintiff also argues that effecting service is 3 the Court’s responsibility as the representative of his legal demand. (ECF No. 29, p. 2.) 4 Where a pro se plaintiff fails to provide the Marshal with accurate and sufficient 5 information to effect service of the summons and complaint, the Court’s sua sponte dismissal of 6 the unserved defendant is appropriate. Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 7 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472, 115 S.Ct. 2293, 132 8 L.Ed.2d 418 (1995). Despite being given opportunities to provide sufficient information and 9 being warned that dismissal would result if he failed to provide the United States Marshal with 10 valid service information, Plaintiff has failed to do so. Plaintiff’s argument that he is not 11 responsible for providing sufficient information to identify the Defendants for service is 12 unavailing. Contrary to his position, the Court is not responsible for identifying the Defendants 13 or prosecuting Plaintiff’s action. “The plaintiff is responsible for having the summons and 14 complaint served within the time allowed by Rule 4(m) . . . .” Fed. R. Civ. P. 4(c)(1). Plaintiff 15 has failed to show good cause why he did not provide the Marshal with accurate and sufficient 16 information for service of process on either of the two Defendants in this action, Officers Marin 17 or Rios. Accordingly, it is HEREBY RECOMMENDED that this action be dismissed without 18 19 prejudice under Rule 4(m) for failure to serve the defendants. These findings and recommendations will be submitted to the United States District 20 21 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 22 twenty-one (21) days after being served with these findings and recommendations, Plaintiff may 23 file written objections with the Court. The document should be captioned “Objections to 24 /// 25 /// 26 /// 27 /// 28 2 1 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 2 objections within the specified time may result in the waiver of the “right to challenge the 3 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 4 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 5 6 7 IT IS SO ORDERED. Dated: /s/ Barbara December 22, 2015 8 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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