(PC) Angel v. Brazelton, et al., No. 1:2012cv00272 - Document 26 (E.D. Cal. 2014)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Stanley A. Boone on 5/21/2014 recommending that action be dismissed. Referred to Judge Anthony W. Ishii; Objections to F&R due by 6/16/2014. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CARLOS ANGEL, 12 13 14 15 Plaintiff, v. BERRING, Defendant. 16 17 18 ) ) ) ) ) ) ) ) ) ) Case No.: 1:12-cv-00272-AWI-SAB (PC) FINDINGS AND RECOMMENDATION TO DISMISS ACTION PURSUANT TO RULE 4(M) OF THE FEDERAL RULES OF CIVIL PROCEDURE [ECF No. 25] Plaintiff Carlos Angel is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 19 This action is proceeding solely against Defendant T. Berring for deliberate in difference to a 20 serious medical need in violation of the Eighth Amendment. The United States Marshal has not been 21 able to locate and serve Defendant Berring. 22 On April 1, 2014, the Court directed Plaintiff to show cause why dismissal was not warranted 23 in light of the failure to serve the sole Defendant Berring. The thirty-day time frame to file a response 24 has expired and Plaintiff has failed to respond to the order. 25 I. 26 DISCUSSION 27 Rule 4(m) of the Federal Rules of Civil Procedure provides: 28 If a defendant is not served within 120 days after the complaint is filed, the court - on 1 1 2 3 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 specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. 4 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the 5 Court, shall serve the summons and the complaint. 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). 6 “[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal 7 for service of the summons and complaint and [he] should not be penalized by having his action 8 dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to perform 9 his duties.” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (internal quotations and citation 10 omitted), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). “So long as the 11 prisoner has furnished the information necessary to identify the defendant, the marshal’s failure to 12 effect service is automatically good cause. . . .” Walker, 14 F.3d at 1422 (internal quotations and 13 citation omitted). However, where a pro se plaintiff fails to provide the Marshal with accurate and 14 sufficient information to effect service of the summons and complaint, the Court’s sua sponte 15 dismissal of the unserved defendants is appropriate. Walker, 14 F.3d at 1421-22. 16 Here, the Court previously determined in its order to show cause that the Marshal had 17 exhausted avenues available to him to locate and serve Defendant B. Sunday. Walker, 14 F.3d at 18 1421-1422. Plaintiff has failed to respond to the order to show cause and/or provide the Court with 19 good cause to extend the time for serving Defendant Sunday. Accordingly, the action should be 20 dismissed. 21 II. 22 RECOMMENDATION 23 Based on the foregoing, 24 IT IS HEREBY RECOMMENDED that the instant action be DISMISSED pursuant to Rule 25 4(m) of the Federal Rules of Civil Procedure. 26 This Findings and Recommendation will be submitted to the United States District Judge 27 assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within twenty (20) 28 days after being served with the Findings and Recommendation, Plaintiff may file written objections 2 1 with the Court. The document should be captioned AObjections to Magistrate Judge=s Findings and 2 Recommendation.@ Plaintiff is advised that failure to file objections within the specified time may 3 waive the right to appeal the District Court=s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 4 5 6 7 8 IT IS SO ORDERED. Dated: May 21, 2014 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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