(PC) Kirchner v. Biter et al, No. 1:2018cv00516 - Document 33 (E.D. Cal. 2021)

Court Description: FINDINGS and RECOMMENDATIONS recommending dismissal of Defendant, Perez without prejudice for failure to serve signed by Magistrate Judge Barbara A. McAuliffe on 2/17/2021. Referred to Judge Anthony W. Ishii; Objections to F&R due within 14-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 KRISTOPHER KIRCHNER, 12 Plaintiff, 13 14 v. Case No. 1:18-cv-00516-AWI-BAM (PC) FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF DEFENDANT PEREZ WITHOUT PREJUDICE FOR FAILURE TO SERVE BITER, et al., FOURTEEN (14) DAY DEADLINE 15 Defendants. 16 Plaintiff Kristopher Kirchner (“Plaintiff”) is a state prisoner proceeding pro se and in 17 18 forma pauperis in this civil rights action under 42 U.S.C. § 1983. This action proceeds on 19 Plaintiff’s first amended complaint for Fourteenth Amendment due process claims against 20 Defendants Henderson, Harden, Diaz, and Perez arising from Plaintiff’s disciplinary proceedings. 21 I. Service by the United States Marshal 22 On December 16, 2020, the Court issued an order directing service on Defendants 23 Henderson, Harden, Diaz, and Perez in this case under the Court’s E-Service pilot program for 24 civil rights cases for the Eastern District of California. (ECF No. 23.) The order included the 25 following information regarding Defendant Perez: “Investigative Employee J Perez; KVSP; 26 approximately March to June 2014.” (Id. at 2.) The same date, the Court received information 27 that there was not enough information to identify Defendant J. Perez. 28 /// 1 1 On December 28, 2020, the Court issued an order requiring Plaintiff to show cause, within 2 thirty days of service of that order, why Defendant Perez should not be dismissed from this 3 action. (ECF No. 27.) In that order, Plaintiff was warned that the failure to respond or failure to 4 show cause would result in the dismissal of Defendant Perez from this action due to Plaintiff’s 5 failure to serve process pursuant to Federal Rule of Civil Procedure 4(m). (Id. at 3.) Plaintiff has 6 not filed a response, and the deadline to do so has expired. 7 II. 8 Federal Rule of Civil Procedure 4(m) provides as follows: 9 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. 10 11 Legal Standard 12 13 Fed.R.Civ.P. 4(m). 14 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the 15 court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “[A]n incarcerated pro 16 se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the 17 summons and complaint, and . . . should not be penalized by having his or her action dismissed 18 for failure to effect service where the U.S. Marshal or the court clerk has failed to perform the 19 duties required of each of them . . . .” Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). “So 20 long as the prisoner has furnished the information necessary to identify the defendant, the 21 marshal’s failure to effect service is ‘automatically good cause . . . .’” Walker v. Sumner, 14 F.3d 22 1415, 1422 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472, 115 23 (1995). However, where a pro se plaintiff fails to provide the Marshal with accurate and 24 sufficient information to effect service of the summons and complaint, the Court’s sua sponte 25 dismissal of the unserved defendant is appropriate. Walker, 14 F.3d at 1421–22. 26 III. Discussion 27 The Marshal attempted to serve Defendant J. Perez pursuant to the E-Service pilot 28 program with the information that Plaintiff provided. However, the Court was informed that the 2 1 2 information provided was not sufficient to identify Defendant J. Perez for service of process. Plaintiff was afforded an opportunity to provide further information to locate Defendant 3 Perez, and did not respond. As the Marshal has already attempted to serve Defendant Perez with 4 the information provided, the Court finds that Plaintiff has not provided sufficient information to 5 identify and locate Defendant Perez for service of process. 6 IV. 7 Based on the foregoing, it is HEREBY RECOMMENDED that Defendant J. Perez be 8 dismissed from this action, without prejudice, for failure to serve process pursuant to Federal 9 Rule of Civil Procedure 4(m). 10 Conclusion and Recommendation These Findings and Recommendation will be submitted to the United States District Judge 11 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 12 (14) days after being served with these Findings and Recommendation, Plaintiff may file written 13 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 14 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 15 specified time may result in the waiver of the “right to challenge the magistrate’s factual 16 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 17 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 18 19 20 21 IT IS SO ORDERED. Dated: /s/ Barbara February 17, 2021 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 3