Azucena v. Runjyin

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CALEB J. AZUCENA, Case No. 23-cv-03234-HSG

8 Plaintiff, ORDER OF DISMISSAL 9 v.

10 RUNJYIN, 11 Defendant.

12 13 Plaintiff Caleb Azucena has filed this pro se Bivens action. For the reasons set forth 14 below, the Court DISMISSES this action without prejudice for failure to either effect service on 15 defendant Runjyin or provide the Court with sufficient information to identify and locate 16 defendant Runjyin such that the United States Marshal is able to effect service. 17 DISCUSSION 18 On or about June 29, 2023, Plaintiff commenced this pro se action by filing a complaint 19 with this Court. Dkt. No. 1. The Court screened the complaint and found that the complaint’s 20 allegation that, on February 6, 2022, United States Customs and Borders agent Runjyin grabbed 21 Plaintiff’s penis and buttock multiple times during the course of a pat-down at San Francisco 22 International Airport, stated a facially plausible Bivens claim. Dkt. No. 7. The Court ordered the 23 Clerk to issue summons and the United States Marshal to serve, without prepayment of fees, a 24 copy of the operative complaint (Dkt. No. 1) and the service order (Dkt. No. 7) upon defendant 25 United States Customs and Border Protection agent Runjyin at the United States Customs and 26 Border Protection San Francisco field office, at 33 New Montgomery Street, 16th Floor, San 27 Francisco, CA 94105, with a courtesy copy sent to United States Custom and Border Protection 1 See Dkt. No. 7 at 3. On March 21, 2024, the United States Marshal filed with the Court an 2 unexecuted service of summons for defendant Runjyin, stating that, on January 25, 2024, they 3 were informed that the Customs and Border Protection office was unable to locate any employee 4 with Runjyin as either a first or last name. Dkt. No. 10. Accordingly, on April 22, 2024, the 5 Court ordered Plaintiff to provide by May 19, 2024, sufficient information to allow the Marshal to 6 locate and serve defendant Runjyin. Dkt. No. 12. On May 15, 2024, the Court granted Plaintiff 7 an extension of time to June 17, 2024 to provide the necessary information. Dkt. No. 14. 8 On May 29, 2024, Plaintiff filed a pleading on a civil rights complaint form. Dkt. No. 15. 9 However, this pleading does not seem to be an amended complaint. Dkt. No. 15 does not make 10 any allegations against defendant Runjyin. See generally Dkt. No. 15. Instead, Dkt. No. 15 11 appears to be a report as to Plaintiff’s attempts at service. In the body of Dkt. No. 15, Plaintiff 12 states that the defendant’s last name is either Runjyin, Runyin, or Runjin; that the defendant is 13 either a United States Border and Customs agent or a TSA agent; and that the defendant is either a 14 citizen of Indonesia or the state of California. Dkt. No. 15 at 2-3. Dkt. No. 15 also reports that, on 15 May 26, 2024, at 1:00 p.m., Plaintiff went to SFO International Airport’s “U.S. Border and 16 Customs – Global Entry Div & TSA” in an attempt to serve defendant Runjyin, but both US 17 Borders and Customs officer Colridge and TSA supervisor Justin refused to meet with Plaintiff or 18 accept service, and TSA supervisor Justin informed Plaintiff that he had no obligation to effect 19 service for Plaintiff or locate the individual named in the complaint. Dkt. No. 15 at 4. 20 The deadline has passed, and Plaintiff has neither effected service on defendant Runjyin 21 nor provided the Court with sufficient information to allow the Marshal to effect service. In Dkt. 22 No. 15, Plaintiff appears to acknowledge that he is uncertain as to the identity of the defendant. 23 He is unclear as to the spelling of Defendant’s name, and what federal agency employs Defendant. 24 This action cannot proceed unless Plaintiff can identify the defendant. This Court has no 25 obligation to assist Plaintiff in identifying the individual who patted Plaintiff down on February 6, 26 2022. See Bias v. Moynihan, 508 F.3d 1212, 1219 (9th Cir. 2007) (“A district court lacks the 27 power to act as a party’s lawyer, even for pro se litigants.”); see also Pliler v. Ford, 542 U.S. 225, 1 Fed. R. Civ. P. 4(m) provides that if a defendant is not served within 90 days after the complaint is 2 filed, the Court may, on motion or its own after notice to plaintiff, dismiss the action without 3 || prejudice against that defendant or order that service be made within a specified time. Fed. R. 4 Civ. P. 44m). The complaint was filed on June 29, 2023. As of the date of this order, Plaintiff has 5 not served defendant Runjyin or provided the Court with sufficient information to allow the 6 || United States Marshal to effect service. Accordingly, this action is DISMISSED without 7 || prejudice pursuant to Fed. R. Civ. P. 44m) because more than 90 days have passed since the 8 complaint was filed and Plaintiff has not served the named defendant. The dismissal is without 9 || prejudice to Plaintiff filing a motion to reopen this action once he determines Defendant’s 10 || identity.! 11 CONCLUSION 12 For the reasons set forth above, the Court DISMISSES this action without prejudice 13 pursuant to Fed. R. Civ. P. 44m). The dismissal is without prejudice to Plaintiff filing a motion to 14 || reopen this action once he determines Defendant’s identity. The Clerk shall enter judgment in 3 15 favor of Defendant and against Plaintiff, terminate all pending motions as moot, and close the a 16 case.

= 17 IT IS SO ORDERED. 18 || Dated: 6/20/2024 19 7 Hasparred Lh □□ HAYWOOD S. GILLIAM, JR. 20 United States District Judge 21 22 23 24 25 26 27 28 ' Plaintiff may be able to submit a Freedom of Information Act (“FOIA”) request to obtain the information needed to identify the federal employee who patted him down on February 6, 2022.