(PC) Thompson v. Garcia-Fernandez et al, No. 1:2022cv01208 - Document 26 (E.D. Cal. 2023)

Court Description: FINDINGS and RECOMMENDATIONS Recommending Dismissal of Defendant Espanoza, without Prejudice, for Failure to Serve signed by Magistrate Judge Barbara A. McAuliffe on 05/24/2023. Referred to Judge Thurston; Objections to F&R due within Fourteen-Days. (Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TOMMY LEE THOMPSON, 12 Plaintiff, 13 14 v. Case No. 1:22-cv-01208-JLT-BAM (PC) FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF DEFENDANT ESPANOZA, WITHOUT PREJUDICE, FOR FAILURE TO SERVE GARCIA-FERNANDEZ, et al., FOURTEEN (14) DAY DEADLINE 15 Defendants. 16 Plaintiff Tommy Lee Thompson (“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 against 19 Defendants E. Garcia-Fernandez, Bravo, Guerro, C. Castillo, Gonzales, and Espanoza for 20 excessive force in violation of the Eighth Amendment. 21 I. Procedural Background On February 28, 2023, the Court issued an order directing service on Defendants in this 22 23 case under the Court’s E-Service pilot program for civil rights cases for the Eastern District of 24 California. (ECF No. 18-1.) The order included the following information regarding Defendant 25 Espanoza: “Correctional Officer Espanoza; NKSP; Facility A Gym; on or about June 1, 2022.” 26 (Id. at 2.) On April 4, 2023, the Court received information that Defendant Espanoza could not 27 be identified. 28 /// 1 1 On April 5, 2023, the Court issued an order for Plaintiff to show cause within thirty (30) 2 days why Defendant Espanoza should not be dismissed from this action. (ECF No. 23.) Plaintiff 3 was warned that the failure to respond or failure to show cause would result in the dismissal of 4 Defendant Espanoza from this action due to Plaintiff’s failure to serve process pursuant to Federal 5 Rule of Civil Procedure 4(m). (Id. at 3.) Plaintiff did not file a response, and the deadline to do 6 so has expired. 7 II. Legal Standard 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 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. 27 28 Discussion The Marshal attempted to serve Defendant Espanoza with the information that Plaintiff provided. However, the information provided was not sufficient to identify Defendant Espanoza 2 1 for service of process. 2 3 Plaintiff was afforded an opportunity to provide further information to locate Defendant Espanoza, (ECF No. 23), but he failed to file a response. 4 As it appears Plaintiff has no further information that can be used to locate Defendant 5 Espanoza, and as the Marshal has already attempted to serve Defendant Espanoza with the 6 information that was provided, the Court finds that Plaintiff has not provided sufficient 7 information to identify and locate Defendant Espanoza for service of process. 8 IV. 9 Conclusion and Recommendation Based on the foregoing, it is HEREBY RECOMMENDED that Defendant Espanoza be 10 dismissed from this action, without prejudice, for failure to serve process pursuant to Federal 11 Rule of Civil Procedure 4(m). 12 These Findings and Recommendation will be submitted to the United States District Judge 13 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 14 (14) days after being served with these Findings and Recommendation, the parties may file 15 written objections with the Court. The document should be captioned “Objections to Magistrate 16 Judge’s Findings and Recommendation.” The parties are advised that failure to file objections 17 within the specified time may result in the waiver of the “right to challenge the magistrate’s 18 factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 19 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 20 21 22 23 IT IS SO ORDERED. Dated: /s/ Barbara May 24, 2023 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 3

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