(PC) Williams v. CSP San Quentin et al, No. 2:2011cv02526 - Document 33 (E.D. Cal. 2014)

Court Description: ORDER signed by Senior Judge William B. Shubb on 9/19/2014 REJECTING the 31 Findings and Recommendations; REMANDING this matter to Magistrate Judge Craig M. Kellison; INSTRUCTING Magistrate Judge Kellison to appoint counsel to represent the plaintiff pursuant to 28 U.S.C. § 1915, and to permit counsel sufficient time to seek information on the location the three named defendants and to effect service upon them. (Michel, G)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 13 JOHNATHAN SAMUEL WILLIAMS, Plaintiff, 14 15 v. CIV. NO. 2:11-cv-2526-WBS-CMK-P ORDER RE: FINDINGS AND RECOMMENDATIONS 16 17 KURK, et al., 18 Defendants. 19 20 ----oo0oo---- 21 22 23 24 25 26 27 Plaintiff Johnathan Samuel Williams, a state prisoner proceeding without counsel, brought a § 1983 action against three defendants--Drs. Kurk, McIntyre, and Wood--for violations of his Eighth Amendment rights. No. 9).) (See Pl.’s Am. Compl. at 43-50 (Docket On January 8, 2013, the Magistrate Judge informed plaintiff that service directed to these defendants was returned unexecuted after the California State Prison, Solano, told the 28 1 1 United States Marshal there was no record of defendants having 2 worked there. 3 additional information sufficient to effect service. 4 (Docket No. 24.) Plaintiff was directed to seek (Id.) During the next year, plaintiff made several requests 5 for extensions of time, (Docket Nos. 26, 27-29), stating that 6 prison policy limits his access to the prison’s law library and 7 that his requests for information from the California Department 8 of Corrections and Rehabilitation (“C.D.C.R.”) had gone 9 unanswered. (Pl.’s Second Mot. For Extension Of Time (Docket No. 10 28).) After receiving two extensions, plaintiff failed to 11 provide any further information concerning the defendants. 12 (Docket No. 31.) 13 Recommendations (“F&Rs”) recommending that the case be dismissed 14 for failure to prosecute and failure to comply with the court’s 15 order to serve defendants. 16 objections to the F&Rs. The Magistrate Judge submitted Findings and (Id.) Plaintiff timely filed (Docket No. 32.) 17 For the reasons below, the court rejects the Magistrate 18 Judge’s recommendation and remands with orders to appoint counsel 19 for the plaintiff and allow counsel time to locate information 20 concerning the defendants. 21 I. 22 Involuntary Dismissal for Failure to Serve Process Courts may involuntarily dismiss a case for failure to 23 prosecute or failure to comply with court rules and orders. 24 Local Rule 110; Fed. R. Civ. P. 41(b). 25 penalty and is to be imposed only in extreme circumstances,” 26 Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986), but 27 dismissal without prejudice is a more easily justified sanction 28 2 See “Dismissal is a harsh 1 for failure to prosecute than dismissal with prejudice, see Ash 2 v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984).1 3 When determining whether dismissal is appropriate, 4 courts must weigh five factors: (1) the public interest in 5 expeditious resolution of litigation, (2) the court’s need to 6 manage its docket, (3) the risk of prejudice to the defendant, 7 (4) the public policy favoring disposition of cases on their 8 merits, and (5) the availability of less drastic alternatives. 9 See Bautista v. Los Angeles Cnty., 216 F.3d 837, 841 (9th Cir. 10 2000). The Ninth Circuit prefers but does not require explicit 11 discussion of these factors. 12 833 F.2d 128, 132 (9th Cir. 1987); Henderson, 779 F.2d at 1424. 13 The Ninth Circuit has upheld dismissal for failure to See Malone v. U.S. Postal Serv., 14 serve process. In Anderson v. Air West, Inc., 542 F.2d 522 15 (1976), for example, the Ninth Circuit upheld a district court’s 16 decision to dismiss for lack of prosecution after “a clear 17 showing of willful delay in the service of process on 18 . . . 19 a reasonable explanation for a one-year delay in service of defendants.” Id. at 525. The plaintiff failed to provide 20 1 21 22 23 24 25 26 27 28 The Ash court noted, however, that dismissal without prejudice still presents dangers, “as for example when statute of limitations or service of process problems are present.” Ash, 739 F.2d at 496. At least some circuits have held that the filing of a complaint that is later dismissed without prejudice for failure to perfect service does not toll the applicable statute of limitations in all contexts. See e.g., Wilson v. Grumman Ohio Corp., 815 F.2d 26, 28 (6th Cir. 1987) (“We are persuaded that the filing of a complaint which is later dismissed without prejudice does not toll the statutory filing period of Title VII.”). The Ninth Circuit has followed this approach in the context of claims under Title VII of the Civil Rights Act of 1964. See Wei v. State of Hawaii, 763 F.2d 370, 372 (9th Cir. 1985). 3 1 process, and the court interpreted the record to reflect 2 “deliberate delay[]” as plaintiff’s counsel tried “to decide 3 whether he really wanted to serve these individuals.” 4 Id. Dismissal for failure to serve defendants has also been 5 used in the context of prisoner litigation. In Taraldsen v. 6 Camberos, Civ. No. 80-1855, 2009 WL 825807 (D. Ariz. Mar. 30, 7 2009), a district court in Arizona dismissed a pro se prisoner’s 8 § 1983 complaint without prejudice after the plaintiff failed to 9 complete and return a service pack for the defendant. Id. at *1. 10 However, the court’s ultimate decision to dismiss the case 11 considered several factors beyond delinquent service of process, 12 including the plaintiff’s failure to notify the court of a change 13 of address. 14 II. 15 Id. at *1-2. Application of the Five Factors This is a close case. The court finds that three of 16 the five factors weigh against involuntary dismissal, while two 17 factors support it. 18 attempts to obtain information concerning the defendants and 19 comply with the court’s orders distinguishes his situation from a 20 typical case warranting dismissal. 21 involuntary dismissal inappropriate at this time. 22 23 24 Ultimately, however, plaintiff’s good faith Accordingly, the court finds A. The Public Interest in Expeditious Resolution of Litigation and the Court’s Need to Manage Its Docket The Ninth Circuit’s discussion of the first two factors 25 in Malone is helpful in fleshing out the essential analysis. 26 Under these factors, the Malone court considered whether the 27 defendant delayed or impeded resolution of the case or prevented 28 the district court from adhering to its trial schedule. 4 See 1 Malone, 833 F.2d at 131. 2 The length of plaintiff’s delay in serving process 3 arguably supports dismissal under this analysis. The Magistrate 4 Judge responded to the initial failure to serve defendants by 5 ordering plaintiff on January 8, 2013, to seek additional 6 information. 7 two extensions granting him more time, (Docket Nos. 26, 27), in 8 addition to an unrequested extension provided by the Magistrate 9 Judge after ruling on one of plaintiff’s motions. Since then, plaintiff has requested and received 10 25.) 11 (Docket No. 120 days of filing a complaint. 12 Fed. R. Civ. P. 4(m) requires defendants to be served with Since service of process was authorized, plaintiff has 13 had more than a year to provide an address or any information 14 sufficient to serve the defendants--a delay that exceeds what 15 other courts have found to be “unreasonable delay.” 16 Henderson, 779 F.2d at 1423 (finding sufficient delay over a 17 period of nine months). 18 resolution of the case, as the court cannot move forward before 19 notifying the defendants of the lawsuit against them. 20 Plaintiff’s requests for more time have also required the 21 expenditure of judicial resources and prevented the Magistrate 22 Judge from determining whether this case has merit. 23 24 See This delay has unquestionably impeded B. Prejudice to the Defendants Delay in serving a complaint also frustrates a 25 defendant’s ability to prepare. See Anderson, 542 F.2d at 525 26 (“Delay in serving a complaint is a particularly serious failure 27 to prosecute because it affects all the defendant’s 28 preparations.”). Courts have found that “failure to prosecute 5 1 diligently is sufficient by itself to justify a dismissal, even 2 in the absence of a showing of actual prejudice to the defendant 3 from the failure.” 4 however, the district court’s job is to chart the line between 5 acceptable and “unreasonable” delay. 6 F.2d 493, 496 (9th Cir. 1984) (“Limited delays and the prejudice 7 to a defendant from the pendency of a lawsuit are realities of 8 the system that have to be accepted, provided the prejudice is 9 not compounded by ‘unreasonable’ delays.”). Id. at 524 (collecting cases). In general, See Ash v. Cvetkov, 739 To do this, courts 10 examine whether the defendant has suffered any actual prejudice 11 from the delay. 12 S. A., 662 F.2d 1275, 1280 (9th Cir. 1980) (“The pertinent 13 question for the district court . . . is not simply whether there 14 has been any [delay], but rather whether there has been 15 sufficient delay or prejudice to justify a dismissal of the 16 plaintiff’s case.”); Citizens Utilities Company v. American 17 Telephone & Telegraph Company, 595 F.2d 1171, 1174 (9th Cir. 18 1979) (“Whether actual prejudice exists may be an important 19 factor in deciding whether a given delay is ‘unreasonable.’”). 20 In Malone, for example, the court analyzed the third factor by 21 examining whether the plaintiff’s actions had impaired the 22 defendant’s ability to go to trial or the court’s ability to 23 arrive at a just decision. 24 particular, the court discussed plaintiff counsel’s ”bad faith 25 decision” to wait until the last minute before notifying the 26 government that it would not comply with a pretrial order. 27 28 See Nealey v. Transportacion Maritima Mexicana, Malone, 833 F.2d at 131. In Here, plaintiff has not yet served any of the defendants, making it difficult to know whether they have 6 Id. 1 suffered actual prejudice as a result. 2 that the court can also consider whether the plaintiff has acted 3 in good faith by diligently attempting to serve process. 4 However, Malone suggests Id. The record suggests that plaintiff has acted in good 5 faith by repeatedly trying to secure the defendants’ addresses or 6 location information. 7 information from the C.D.C.R. without receiving a response. 8 (Pl.’s Second Mot. For Extension Of Time; Pl.’s Opp’n at 9). 9 supports this claim with a copy of a letter addressed to the 10 “Director of Corrections and Rehabilitation for the State of 11 California.” 12 plaintiff asks for information on the defendants and states that 13 this is the second letter of its kind because his first went 14 without a response. 15 that his status as a current prisoner may prevent him from 16 obtaining information on C.D.C.R. employees, (Id. at 2.), but his 17 letter requests that information be provided directly to the U.S. 18 Marshal or this court. 19 a bad faith motive to waste time or resources like that found in 20 Malone. 21 24 (Pl.’s Opp’n at 12, Ex. A.) (Id.) He Within the letter, Plaintiff contends in his opposition (Id. at 12.) These actions do not evince Accordingly, the third factor weighs against dismissal. C. Public Policy Favoring Disposition on the Merits 22 23 Plaintiff claims to have requested such The Malone court noted without discussion that the fourth factor cuts against dismissal. n.2.2 Malone, 833 F.3d at 133 Similarly here, the public policy favoring disposition of 25 26 27 28 2 Several courts have simply noted that public policy favors disposition of cases on the merits without significant discussion. See, e.g., Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). 7 1 cases on their merits weighs against dismissal, which will only 2 result in the defendant refilling his case and pushing potential 3 resolution back further. 4 D. Consideration of Alternatives 5 The Magistrate Judge did warn plaintiff that failure to 6 serve process could result in dismissal. See Malone, 833 F.3d at 7 132 (suggesting that providing a plaintiff with warnings that 8 failure to serve process will result in dismissal suffices under 9 the consideration-of-alternatives factor). However, the court 10 finds a more thorough consideration of less-drastic alternatives 11 to be appropriate in this case. 12 the “unique handicaps of incarceration” facing pro se prisoner 13 plaintiffs, including “prisoners’ limited access to legal 14 materials, constraints on their abilities to obtain evidence, and 15 difficulties monitoring the progress of their cases.” 16 Carey, 684 F.3d 934, 938 (9th Cir. 2012) (quoting Rand v. 17 Rowland, 154 F.3d 952 (9th Cir. 1998) (internal quotations 18 omitted)). 19 extra guidance and clear explanations of any deficiencies “in 20 language comprehensible to a lay person.” 21 1260-61 (9th Cir. 1992) (upholding dismissal after observing that 22 the district court gave the plaintiff adequate guidance and 23 clearly explained deficiencies in the plaintiff’s pleadings). 24 the absence of such guidance, procedural defaults cannot be 25 entirely surprising, and a lesser sanction is more appropriate.3 26 27 28 3 The Ninth Circuit has recognized Woods v. It has suggested that district courts should provide Ferdik, 963 F.2d at In As the Malone court noted, “[p]roviding plaintiff with a second or third chance following a procedural default is a ‘lenient sanction,’ which, when met with further default, may justify imposition of the ultimate sanction of dismissal with 8 1 The Magistrate Judge’s order directed plaintiff to 2 obtain information relating to service of process “through any 3 means available to him, including the California Public Records 4 Act, Cal. Gov’t. Code § 6250, et seq., or other means.” 5 No. 24.) 6 statute, it fails to provide guidance on how or to whom such a 7 request should be made--the kind of practical information most 8 useful to a pro se plaintiff with limited access to legal 9 materials. (Docket While this order points to what may be a helpful (See Docket No. 27, 28 (stating that the plaintiff 10 can only access the law library once per week).) 11 suggests that plaintiff may seek judicial intervention if access 12 to the information is denied or unreasonably delayed. 13 No. 24.) 14 provide any concrete direction on how or through whom to request 15 judicial support. 16 prisoner without counsel, the Magistrate Judge’s orders may not 17 provide even a diligent plaintiff with the support needed to 18 avoid procedural default.5 19 Again, this guidance is helpful.4 The order also (Docket But it fails to Considering the difficulties that face a In sum, three of the five factors weigh against 20 21 22 23 24 25 26 27 28 prejudice.” Malone, 833 F.2d at 132 (quoting Callip v. Harris County Child Welfare Department, 757 F.2d 1513, 1521 (5th Cir.1985)). 4 Plaintiff’s Motion for Injunctive Relief, filed just before the Magistrate Judge submitted his F&Rs, was perhaps such an attempt to secure judicial assistance. (See Docket No. 30.) 5 To be clear, it is not the job of a magistrate judge to prosecute the plaintiff’s case for him. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 n.4 (9th Cir. 1992). (“It is not the district court’s role to amend plaintiff’s complaint for him after his failure to comply with its court order to do just that.”). The court merely believes that dismissal is too harsh a sanction given the obstacles plaintiff faces in requesting judicial assistance. 9 1 involuntary dismissal here. 2 plaintiff’s case without prejudice will not cure the difficulties 3 discussed above. 4 inappropriate at this stage of the proceeding. 5 III. Appointment of Counsel 6 More importantly, dismissal of Accordingly, the court finds dismissal The Magistrate Judge denied plaintiff’s earlier request 7 for appointment of counsel. (Docket No. 26 at 3.) In light of 8 the difficulties that have arisen since then, however, the court 9 now finds that appointment of counsel will best serve to move 10 this matter forward. 11 counsel, pursuant to 28 U.S.C. § 1915(e)(1), upon a finding of 12 “exceptional circumstances.” 13 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 14 1335-36 (9th Cir. 1990). 15 requires evaluating two factors: (1) plaintiff’s “likelihood of 16 success on the merits” and (2) “the ability of the plaintiff to 17 articulate his claims on his own in light of the complexity of 18 the legal issues involved.” 19 Neither factor is dispositive and both must be viewed together 20 before reaching a decision. See id. 21 The court may request the assistance of See Terrell v. Brewer, 935 F.2d A finding of exceptional circumstances See Terrell, 935 F.2d at 1017. Evaluation of the likelihood of success is difficult at 22 such an early stage in this proceeding. Plaintiff claims that, 23 over the last ten years, he has repeatedly requested dental care 24 to alleviate pain and prevent the loss of teeth. 25 Compl. at 43, 48.) 26 Prison, Solano, refused to provide treatment, with the exception 27 of tooth extraction. 28 remaining teeth with several defective crowns and fillings, (id. (Pl.’s Am. He alleges that doctors at California State (Id. at 44.) 10 Plaintiff states he has few 1 at 46-47), and that denial of treatment has caused him to endure 2 “painful tooth aches” that force him to chew only on one side of 3 his mouth, (id. at 44). 4 verdicts premised upon comparable denial of dental care. 5 e.g., Woods, 684 F.3d at 936-38 (detailing a former prisoner’s 6 success in a civil rights case for failure to provide adequate 7 dental care while incarcerated at California State Prison, 8 Solano). 9 Similarly situated plaintiffs have won See, More apropos to the circumstances of the case here, 10 what plaintiff seeks immediately is to locate the whereabouts and 11 serve the defendants he has sued. 12 counsel, he should be able to succeed in doing that. 13 the second factor, both the plaintiff and this court would 14 benefit from the appointment of counsel to help prosecute 15 plaintiff’s case. 16 named defendants without assistance, and more delay may further 17 exacerbate his injuries. 18 (stating that plaintiff arrived in prison with thirty teeth, but 19 “now has only eight upper teeth, and has been disfigured by the 20 loss of his other teeth which also created a speech 21 impediment”).) 22 information on his behalf and more efficiently securing 23 responses. 24 Given the assistance of Thus, under The plaintiff has been unable to locate the (See Pl.’s Mot. for Inj. Relief at 2 Counsel can help by making requests for Moreover, the Magistrate Judge has noted that plaintiff 25 has a tendency to respond to court requests with “diatribe[s] of 26 how he has been mistreated,” rather than addressing procedural 27 deficiencies. 28 misunderstanding of the complexities of his case by frequently (Docket No. 26 at 2.) 11 Plaintiff also evinces a 1 misstating the type of case he is proceeding in by referring to 2 himself as a petitioner and discussing a writ of habeas corpus. 3 (Id.) 4 potential impact on other prisoners within the California prison 5 system, adequate presentation of this case is exceptionally 6 important. 7 dissenting) (suggesting that counsel should have been appointed 8 sooner in a case involving allegations of deficient medical 9 treatment within the Nevada penal system). 10 Given the severity of his alleged injuries and this case’s See Wood, 900 F.2d at 1336 n.1 (Reinhardt, J., IT IS THEREFORE ORDERED that (1) the Magistrate Judge’s 11 Findings and Recommendations of April 16, 2014, be, and the same 12 hereby are, rejected; (2) this matter be, and the same hereby is, 13 REMANDED to the Magistrate Judge with instructions to appoint 14 counsel to represent plaintiff pursuant to 28 U.S.C. § 1915, and 15 to permit counsel sufficient time to seek information on the 16 location the three named defendants and to effect service upon 17 them. 18 Dated: September 19, 2014 19 20 21 22 23 24 25 26 27 28 12

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