(PC) Herrera v. Hall et al, No. 1:2008cv01882 - Document 57 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS Recommending that Defendants Dill and Bluford be DISMISSED from this action pursuant to Federal Rule of Civil Procedure 4(m) due to Plaintiffs failure to effect service of process, signed by Magistrate Judge Sheila K. Oberto on 7/19/2010, referred to Judge O'Neill. Objections to F&R due by 8/23/2010(Marrujo, C)

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(PC) Herrera v. Hall et al Doc. 57 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 CARLOS HERRERA, 10 CASE NO. 1:08-cv-01882-LJO-SKO PC Plaintiff, 11 v. 12 FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT DEFENDANTS DILL AND BLUFORD BE DISMISSED C. HALL, et al., 13 OBJECTIONS DUE WITHIN 30 DAYS Defendants. / 14 15 Plaintiff Carlos Herrera (“Plaintiff”) is a state prisoner proceeding pro se and in forma 16 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On June 21, 2010, the Court 17 ordered Plaintiff to show cause why Defendants Dill and Bluford should not be dismissed from this 18 action due to Plaintiff’s failure to effect service of process on them. (Doc. #49.) The Court noted 19 that it received unexecuted summonses addressed to Defendants Dill and Bluford that indicated that 20 the U.S. Marshal was unable to effect service of process because they could not be located using the 21 information provided by Plaintiff. Plaintiff was directed to provide the Court with updated 22 information on Dill and Bluford’s whereabouts. 23 Plaintiff responded to the order to show cause on July 12, 2010. (Doc. #55.) Plaintiff states 24 that Defendant Dill should not be dismissed from this action because Dill violated Plaintiff’s 25 constitutional rights. Plaintiff did not provide an updated home or work address for Defendant Dill. 26 Instead, Plaintiff stated that Defendant Dill’s wife works as a correctional counselor at Kern Valley 27 State Prison and that she should know the whereabouts of Defendant Dill. Plaintiff provides no 28 information about Defendant Bluford’s whereabouts. 1 Dockets.Justia.com 1 Under Federal Rule of Civil Procedure 4(m), if a defendant is not served within 120 days 2 after the complaint is filed, the Court must dismiss the action without prejudice against that 3 defendant, or order that service be made within a specified time. Plaintiff is entitled to have process 4 served by a U.S. Marshal because he is proceeding in forma pauperis. 28 U.S.C. § 1915(d), Federal 5 Rule of Civil Procedure 4(c)(3). 6 On August 14, 2009, the Court directed the U.S. Marshal to serve Defendants Dill and 7 Bluford using the address provided by Plaintiff. (Doc. #13.) The Court effectively extended the 8 deadline for effecting service to provide the U.S. Marshal an opportunity to effect service using the 9 information provided by Plaintiff. Although the Ninth Circuit has held that incarcerated pro se 10 plaintiffs should not be penalized where the failure to effect service was caused by the U.S. 11 Marshal’s failure to perform their duties under 28 U.S.C. § 1915 and Federal Rule of Civil Procedure 12 4, Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990), the failure to effect service here was caused 13 by Plaintiff’s failure to provide the Court with a current addresses for Defendants Dill and Bluford. 14 There is no indication that the U.S. Marshal failed to perform the duties required by Section 1915 15 or Rule 4. 16 The Court is unaware of any authority that states that the U.S. Marshal must conduct an 17 investigation on Plaintiff’s behalf to locate Defendants. The U.S. Marshal is only obligated to 18 attempt service at the address provided by Plaintiff. The U.S. Marshal is not obligated to question 19 Defendant Dill’s family members to locate Dill. Thus, the Court will not direct the U.S. Marshal 20 to interrogate Defendant Dill’s wife about her husband’s whereabouts. 21 Accordingly, it is HEREBY RECOMMENDED that Defendants Dill and Bluford be 22 dismissed from this action pursuant to Federal Rule of Civil Procedure 4(m) due to Plaintiff’s failure 23 to effect service of process. 24 These Findings and Recommendations are submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) 26 days after being served with these Findings and Recommendations, any party may file written 27 objections with the Court and serve a copy on all parties. Such a document should be captioned 28 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 2 1 shall be served and filed within ten (10) days after service of the objections. The parties are advised 2 that failure to file objections within the specified time may waive the right to appeal the District 3 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 4 5 IT IS SO ORDERED. 6 Dated: ie14hj July 19, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 7 8 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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