(PC) Vaughn, Sr. v. Wegman et al, No. 1:2015cv01902 - Document 49 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS to dismiss Defendant, Bowman pursuant to Rule 4(M) re 18 , 19 , 20 , 26 , 34 , 35 , 36 signed by Magistrate Judge Jennifer L. Thurston on 3/21/2018. Referred to Judge Lawrence J. O'Neill; Objections to F & R's due within 21-Days. (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 RAY LEE VAUGHN, SR., 12 Plaintiff, 13 v. 14 WEGMAN, et al., 15 Case No. 1:15-cv-01902-LJO-JLT (PC) FINDINGS AND RECOMMENDATION TO DISMISS DEFENDANT BOWMAN PURSUANT TO RULE 4(M) (Docs. 18, 19, 20, 26, 34, 35, 36) Defendants. 21-DAY DEADLINE 16 17 I. FINDINGS 18 A. Procedural History 19 The United States Marshals Service has repeatedly attempted service on Defendant 20 Bowman -- most recently using the last known address and phone number defense counsel 21 obtained from the CDCR but was unable to complete it. (Doc. 35.) The unexecuted summons 22 indicates that Defendant Bowman left the state in 2015 and that the phone number provided has 23 been disconnected. (Id.) Thus, on November 13, 2017, Plaintiff was provided a final opportunity 24 to provide additional information as to where Defendant Bowman may be located so that service 25 might be accomplished. (Doc. 36.) Rather than provide further logistical information, Plaintiff 26 filed a writ of mandamus1 seeking an order compelling the CDCR to produce information and the 27 28 1 Plaintiff’s request for a writ of mandamus is denied by concurrently issued order. 1 1 forwarding address of Defendant Bowman. (Doc. 37.) It thus appears that Plaintiff has no further 2 information to provide with which to locate Defendant Bowman for service such that Defendant 3 Bowman should be dismissed pursuant to Federal Rule of Civil Procedure 4(m). 4 B. 5 Rule 4(m) of the Federal Rules of Civil Procedure provides: 6 Legal Standard If a defendant is not served within 120 days after the complaint is filed, the court - 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 specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. 7 8 9 10 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the Court, 11 shall serve the summons and the complaint. 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). “[A]n 12 incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal 13 for service of the summons and complaint and [he] should not be penalized by having his action 14 dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to 15 perform his duties.” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (internal quotations 16 and citation omitted), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). 17 “So long as the prisoner has furnished the information necessary to identify the defendant, the 18 marshal’s failure to effect service is automatically good cause. . . .” Walker, 14 F.3d at 1422 19 (internal quotations and citation omitted). However, where a pro se plaintiff fails to provide the 20 Marshal with accurate and sufficient information to effect service of the summons and complaint, 21 the Court’s sua sponte dismissal of the unserved defendant is appropriate. Walker, 14 F.3d at 22 1421-22. 23 C. 24 The Marshal’s Office has exhausted the avenues available to it in attempting to locate Analysis 25 Defendant Bowman for service. Walker, 14 F.3d at 1421-22. This action has been pending for 26 over two years and the dispositive motion filing deadline for all parties in the action is 27 approaching on March 30, 2018. (Doc. 25.) Plaintiff’s time for identifying and serving 28 2 1 Defendant Bowman has been extended well beyond the 120 days from the filing of the First 2 Complaint, on May 2, 2016, as allowed in Rule 4(m). (Doc. 12.) 3 While good cause initially existed to allow extension beyond the 120 day service deadline 4 of Rule 4(m), there is no good cause to extend the time for service of Defendant Bowman any 5 further. It is Plaintiff’s obligation to provide information necessary to identify and locate a given 6 defendant. This Plaintiff has not done and apparently admits that he is unable to do. Good cause 7 does not exist to extend the time for service of the operative complaint in this action on Defendant 8 Bowman any further. 9 II. 10 CONCLUSION Plaintiff has failed and is unable to provide sufficient information upon which to locate 11 Defendant Bowman for service of a summons in this action. Good cause does not exist to grant 12 further extension. Fed. R. Civ. P. 4(m). Accordingly, the Court RECOMMENDS that Defendant 13 Bowman and all claims against him be dismissed without prejudice from this action. 14 These Findings and Recommendations will be submitted to the United States District 15 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within 21 16 days after being served with these Findings and Recommendations, the parties may file written 17 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 18 Findings and Recommendations.” Failure to file objections within the specified time may result 19 in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. Nov. 18, 20 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 21 22 23 IT IS SO ORDERED. Dated: March 21, 2018 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 3