(PC) Monson v. Melkonian, et al., No. 1:2017cv00395 - Document 31 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS, Recommending that Defendant M. Martinez be Dismissed from this Action, without Prejudice, Pursuant to Federal Rule of Civil Procedure 4(M) re 26 , signed by Magistrate Judge Erica P. Grosjean on 10/5/18. Referred to Judge O'Neill. Objections to F&R Due Within 21-Days. (Gonzalez, R)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 TRENELL MONSON, 11 Plaintiff, 12 Case No. 1:17-cv-00395-LJO-EPG (PC) FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANT M. MARTINEZ BE DISMISSED FROM THIS ACTION, WITHOUT PREJUDICE, PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 4(M) v. 13 R. MELKONIAN and M. MARTINEZ, 14 Defendants. (ECF NO. 26) 15 TWENTY-ONE DAY DEADLINE 16 17 18 I. RELEVANT PROCEDURAL HISTORY 19 Trenell Monson (“Plaintiff”) is a pretrial detainee being held at Fresno County Jail. He 20 is proceeding pro se and in forma pauperis with this civil rights action filed pursuant to 42 21 U.S.C. § 1983. This case now proceeds on Plaintiff’s Second Amended Complaint (ECF No. 22 10) against defendants R. Melkonian and M. Martinez on Plaintiff’s claim for failure to protect 23 in violation of the Fourteenth Amendment (ECF Nos. 12 & 24). 24 Plaintiff’s complaint initially listed Unknown Floor Officers as defendants. (ECF No. 25 10). After Plaintiff failed to timely identify the Unknown Floor Officers, the Court issued an 26 order for Plaintiff to show cause why the case should not be dismissed for failure to serve and 27 failure to prosecute. (ECF No. 15). In response, Plaintiff requested the issuance of a third 28 party subpoena so that he could identify and serve the Unknown Floor Officers. (ECF No. 18). 1 1 The Court discharged the order to show cause and granted Plaintiff’s request for the issuance of 2 a third party subpoena to the Fresno County Sheriff’s Office. (ECF No. 20). The subpoena 3 was served (ECF No. 23), and the Fresno County Sheriff’s Office identified the two officers it 4 believed fit Plaintiff’s description and provided the Court with their service addresses (ECF No. 5 24). Accordingly, the Court ordered the United States Marshals Service (“the Marshal”) to 6 serve Defendants. (ECF No. 25). 7 On July 24, 2018, the summons for defendant Martinez was returned unexecuted. (ECF 8 No. 26). 9 Martinez has been deployed with the military. (Id.). A return date was not known, and no 10 forwarding information was provided. (Id.). The agent serving process indicted that he or she 11 was unable to locate defendant Martinez. (Id.). According to the Marshal, Fresno County notified the Marshal that defendant 12 Several months have passed since service was returned unexecuted, and Plaintiff has 13 not provided another address for defendant Martinez or requested the issuance of a third party 14 subpoena so that he can attempt to find defendant Martinez’s current address. 15 Thus, the Court will recommend that defendant Martinez be dismissed from the action, 16 without prejudice. However, if during the objection period Plaintiff provides another address 17 for defendant Martinez, requests the issuance of a third party subpoena on an appropriate entity, 18 or shows good cause for the failure to timely serve defendant Martinez, the Court will vacate 19 these findings and recommendations. 20 II. LEGAL STANDARDS 21 Pursuant to Federal Rule of Civil Procedure 4(m), 22 If a defendant is not served within 90 days after the complaint is filed, the court B on motion or on its own after notice to the plaintiff B 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. 23 24 25 Fed. R. Civ. P. 4(m). 26 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of 27 the Court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “‘[A]n 28 incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal 2 1 for service of the summons and complaint and ... should not be penalized by having his action 2 dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to 3 perform his duties….’” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett 4 v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990) (alterations in original)), overruled on other 5 grounds by Sandin v. Connor, 515 U.S. 472 (1995). “So long as the prisoner has furnished the 6 information necessary to identify the defendant, the marshal=s failure to effect service is 7 >automatically good cause….’” Walker, 14 F.3d at 1422 (quoting Sellers v. United States, 902 8 F.2d 598, 603 (7th Cir.1990)). However, where a pro se plaintiff fails to provide the Marshal 9 with accurate and sufficient information to effect service of the summons and complaint, 10 dismissal of the unserved defendant is appropriate. Walker, 14 F.3d at 1421-22. 11 III. ANALYSIS 12 The return of service filed by the Marshal indicates that Fresno County notified the 13 Marshal that defendant Martinez has been deployed with the military. (Id.). A return date was 14 not known, and no forwarding information was provided. (Id.). The agent serving process 15 indicted that he or she was unable to locate defendant Martinez. (Id.). 16 Plaintiff has failed to provide the Marshal with accurate and sufficient information to 17 effect service of the summons and complaint on defendant Martinez, and has failed to serve 18 defendant Martinez within the time period required by Federal Rule of Civil Procedure 4(m). 19 Plaintiff has not provided another address for defendant Martinez, or even requested the 20 issuance of a third party subpoena so that he can attempt to find defendant Martinez’s current 21 address (which he appears to know how to do, because he has previously requested the issuance 22 of a third party subpoena). 23 Accordingly, the Court will recommend that defendant Martinez be dismissed from the 24 action, without prejudice. However, if during the objection period Plaintiff provides another 25 address for defendant Martinez, requests the issuance of a third party subpoena on an 26 appropriate entity, or shows good cause for the failure to timely serve defendant Martinez, the 27 Court will vacate these findings and recommendations. 28 /// 3 1 IV. CONCLUSION AND RECOMMENDATION 2 Based on the foregoing, the Court HEREBY RECOMMENDS that defendant Martinez 3 be dismissed from this action because of Plaintiff’s failure to provide the Marshal with accurate 4 and sufficient information to effect service of the summons and complaint on defendant 5 Martinez within the time period prescribed by Federal Rule of Civil Procedure 4(m). 6 These findings and recommendations are submitted to the United States district judge 7 assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within twenty- 8 one (21) days after being served with these findings and recommendations, any party may file 9 written objections with the court. Such a document should be captioned “Objections to 10 Magistrate Judge's Findings and Recommendations.” Any reply to the objections shall be 11 served and filed within seven (7) days after service of the objections. The parties are advised 12 that failure to file objections within the specified time may result in the waiver of rights on 13 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 14 923 F.2d 1391, 1394 (9th Cir. 1991)). 15 16 17 IT IS SO ORDERED. Dated: October 5, 2018 /s/ UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 4

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