(PC) Dillingham v. Garcia

• Court: District Court, E.D. California
• Decided: July 22, 2025
• Docket: 1:25-cv-00695
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICKY DILLINGHAM, Case No. 1:25-cv-00695-HBK (PC) 12 Plaintiff, ORDER ADVISING PLAINTIFF OF FED. R. CIV. P. 4(m) 13 v. SEPTEMBER 25, 2025 DEADLINE 14 GARCIA, B. CATES, AND B. SANDERS, 15 Defendants. 16 17 18 19 This matter comes before the Court upon review of the file. Plaintiff who is proceeding 20 pro se and in forma pauperis on his civil rights complaint filed under 42 U.S.C. § 1983. (Doc. 21 No. 1, Complaint). The Court determined the Complaint stated a claim for a violation of 22 Plaintiff’s Eighth Amendment rights for unconstitutional conditions of confinement against 23 Defendants Garcia, B. Cates, and B. Sanders. (Doc. No. 6). On June 26, 2025, the Court directed 24 service on the Defendants under the Court’s E-Service program with the California Department of 25 Corrections and Rehabilitations (“CDCR”). (Id.). On July 1, 2025, CDCR filed a notice of 26 intent to waive service on behalf of Defendants B. Cates and B. Sanders (Doc. No. 8) and notice 27 to not waive service on behalf of Defendant Garcia. (Doc. No. 9). CDCR states they are “unable 28 to identify” Defendant Garcia. (Id.). On July 9, 2025, the United States Marshal (“USM”) 1 returned the summons unexecuted as to Defendant Garcia. (Doc. No. 10). The USM stated they 2 could not locate anyone with the name Garcia after speaking with personnel at California 3 Correctional Institution and with the laundry supervisor. (Id.). 4 Federal Rule of Civil Procedure 4(m) requires a plaintiff to serve a defendant within 90 5 days of filing the complaint. Fed. R. Civ. P. 4(m). The time may be extended for good cause 6 shown. Id. Here, Plaintiff 90-day period commenced on June 26, 2025, when the Court directed 7 service upon the Defendants. 8 If a defendant is not served within the requisite time period, after notice to plaintiff, the 9 court must dismiss the action without prejudice, or order that service be made within a certain 10 time period. Id. (emphasis added). “Pro se litigants must follow the same rules of procedure that 11 govern other litigants.” Thomas v. Scott, 2015 U.S. Dist. LEXIS 96365, *6-*7 (C.D. Cal. Jun. 4, 12 2016)(findings and recommendations to dismiss the prisoner plaintiff’s case for a failure to effect 13 service adopted by Thomas v. Scott, 2015 U.S. Dist. LEXIS 96387, 2015 WL 4507255 (C.D. Cal. 14 Jul. 22, 2015)) (quoting King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)(overruled in part by 15 Lacy v. Maricopa County, 693 F.3d 896 (9th Cir. 2021)) (citing Ghazali v. Moran, 46 F.3d 52, 16 53-54 (9th Cir. 1995)(the failure of a pro-se litigant to follow the procedural rules justified the 17 dismissal of the pro-se litigant’s civil rights action). While prisoners may rely on the USM Office 18 to serve a defendant, a district court may dismiss a prisoner’s civil rights complaint for a failure to 19 effect service when the prisoner plaintiff fails to provide the U.S. Marshals with sufficient 20 information to serve a defendant. Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994). The 21 rules of civil procedure are “based on the assumption that litigation is normally conducted by 22 lawyers[;]” however, the rules should not be interpreted in a manner that excuses “mistakes by 23 those who proceed without counsel.” McNeil v. United States, 508 U.S. 106, 113 (1993). 24 Accordingly, it is ORDERED: 25 1. Plaintiff shall provide an updated address or further identifying information for 26 Defendant Garcia. 27 2. Plaintiff is duly advised that if service cannot be effectuated upon Defendant Garcia 28 within the 90-day Rule 4(m) period, or no later than September 25, 2025, then he will 1 need to show good cause why the Court should not dismiss Defendant Garcia without 2 prejudice. 3 “| Dated: __Iuly 22, 2025 law □□□ fareh fackt 5 HELENA M. BARCH-KUCHTA ‘ UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28