(PC) Jones v. Lynch et al, No. 2:2022cv00025 - Document 31 (E.D. Cal. 2024)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 4/24/2024 RECOMMENDING that this action 1 be dismissed without prejudice pursuant to FRCP 4(m); and. These Findings and Recommendations are submitted to U.S. District Judge Dale A. Drozd; Objections to these F&Rs due within twenty-one days. (Mena-Sanchez, L)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAYON JONES, 12 Plaintiff, 13 14 No. 2:22-cv-00025 DAD DB P v. FINDINGS AND RECOMMENDATIONS JEFF LYNCH, et al., 15 Defendants. 16 17 Plaintiff is a prisoner proceeding pro se and in forma pauperis. Plaintiff seeks relief 18 19 pursuant to 42 U.S.C. § 1983. For the reasons set forth below, the undersigned recommends this 20 action be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 4(m). 21 I. Background 22 Following plaintiff’s notice of election (ECF No. 13) and the court’s order filed on 23 November 28, 2022 (ECF No. 14), this case proceeds on plaintiff’s potentially cognizable Eighth 24 Amendment medical needs claim against a single defendant, Kimberly Brooke. On November 28, 25 2022, the court ordered the U.S. Marshal to serve the complaint on defendant Brooke. (ECF No. 26 15.) 27 28 On January 3, 2023, the California Department of Corrections and Rehabilitation (“CDCR”) returned a notice of intent not to waive service for defendant Brooke and provided 1 1 defendant Brooke’s last known address. (ECF No. 17.) Subsequently, process directed to 2 defendant Brooke at the last known address provided by CDCR was returned unserved because, 3 per Veronica at the leasing office, no one by that name lived there. (ECF No. 19.) 4 On June 15, 2023, the court ordered plaintiff to provide a different address to serve 5 defendant Brooke. (ECF No. 20.) On July 25, 2023, the court ordered the U.S. Marshal to serve 6 the complaint on defendant Brooke at the address provided by plaintiff. (ECF No. 25.) Process 7 directed to defendant Brooke was returned unserved because there was no record of Kimberly 8 Brooke currently employed at the institution. (ECF No. 27.) 9 On January 11, 2024, plaintiff was advised he must provide a different address for 10 defendant Brooke to be served. (ECF No. 28.) Plaintiff was instructed to promptly seek such 11 information through discovery, the California Public Records Act, Calif. Gov’t. Code § 6250, et 12 seq., or other means available to plaintiff. (Id.) On January 22, 2024, plaintiff responded to the 13 court’s order, stating defendant Brooke was employed at CSP-Sacramento on April 20, 2021, 14 which is the last known address plaintiff has for defendant Brooke. (ECF No. 29.) 15 As set forth above, though, CDCR has already indicated that defendant Brooke is not 16 found at CSP-Sacramento. Accordingly, plaintiff was ordered to show cause, in writing and 17 within 60 days, why this action should not be dismissed for failure to provide sufficient 18 information to effectuate service on defendant Brooke. Plaintiff has not filed a response to the 19 order to show cause. 20 II. Legal Standard 21 Federal Rule of Civil Procedure 4 provides: 22 If a defendant is not served within 90 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. 23 24 25 26 27 28 Fed. R. Civ. P. 4(m). In cases involving plaintiffs proceeding in forma pauperis, the court routinely orders the U.S. Marshal to serve summonses and complaints on the defendants. Fed. R. Civ. P. 4(c)(3). 2 1 “[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. 2 Marshal for service of the summons and complaint, and … should not be penalized by having his 3 or her action dismissed for failure to effect service where the U.S. Marshal or the court clerk has 4 failed to perform the duties required.” Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). “So 5 long as the prisoner has furnished the information necessary to identify the defendant, the 6 marshal’s failure to effect service is automatically good cause.” Walker v. Sumner, 14 F.3d 1415, 7 1422 (9th Cir. 1994) (internal quotation marks and citation omitted), abrogated on other grounds 8 by Sandin v. Connor, 515 U.S. 472, 115 (1995). However, where a pro se plaintiff fails to provide 9 the U.S. Marshal with sufficient information to effectuate service on a defendant, the court may 10 dismiss the action against that defendant. Id. at 1421-22. 11 III. Analysis 12 Here, CDCR attempted service on defendant Brooke through the Court’s e-service pilot 13 program. However, CDCR indicated defendant Brooke is longer employed with CDCR and 14 cannot be served via the e-service program. The U.S. Marshal then attempted service on 15 defendant Brooke at the last known address. Defendant Brooke was not found at the last known 16 address provided by CDCR. Several months have passed since service was returned unexecuted, 17 and plaintiff has not provided another address for defendant Brooke or otherwise communicated 18 with the court about any attempts to find defendant Brooke. The time for service has long 19 expired, and plaintiff has failed to provide the U.S. Marshal with sufficient information to 20 effectuate service on defendant Brooke, who is the sole defendant in this action. 21 IV. 22 As set forth above, IT IS RECOMMENDED as follows: 23 1. This action be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 24 Recommendation 4(m); and 25 2. The Clerk of Court be directed to close this case. 26 These findings and recommendations are submitted to the United States District Judge 27 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21) 28 days after being served with these findings and recommendations, plaintiff may file written 3 1 objections with the court and serve a copy on all parties. Such a document should be captioned 2 “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that 3 failure to file objections within the specified time may waive the right to appeal the District 4 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 5 Dated: April 24, 2024 6 7 8 DLB7 9 jone0025.4m.dism 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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