(PC) Hill v. Escobar et.al.

Opinion

1 2 3 4 5 6 7 10 11 CYMEYON HILL, Case No. 2:21-cv-02118-DAD-JDP (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 v. THAT THIS CASE BE DISMISSED WITHOUT PREJUDICE FOR FAILURE TO 14 ESCOBAR, et al., EFFECT SERVICE ON DEFENDANTS 15 Defendants. OBJECTIONS DUE WITHIN FOURTEEN DAYS 16 17 Plaintiff, a civil detainee, is proceeding pro se with a civil rights action pursuant to 42 18 U.S.C. § 1983. Despite multiple opportunities to do so, plaintiff has not provided the U.S. 19 Marshal with sufficient information to effect service on defendants Rios and Bonache. Thus, 20 under Federal Rule of Civil Procedure 4(m), I will recommend that this action be dismissed. 21 On November 14, 2022, I directed service on defendants Rios and Bonache under the 22 court’s E-Service pilot program. ECF No. 16. Process was returned unserved because CDCR 23 could not identify either defendant. ECF No. 18. I directed plaintiff to provide additional 24 information to facilitate service on these defendants. ECF No. 20. On May 8, 2023, plaintiff 25 returned two completed USM-285 forms, ECF No. 21, and I ordered the U.S. Marshal to direct 26 service on the two defendants. ECF No. 22. On September 7, 2023, the Marshal submitted the 27 summons as unexecuted. ECF No. 25. Both unexecuted summonses have the same entry: 28 “9/6/2023—Per CDCR, defendant is not an employee.” Id. I issued another order directing 1 plaintiff to promptly seek information on defendants’ addresses through discovery, the California 2 Public Records Act, Calif. Gov’t. Code § 6250, et seq., or other available means. ECF No. 26. I 3 also instructed plaintiff to provide physical addresses, since he had previously provided a P.O. 4 box. Id. at 2. I instructed plaintiff to complete and return to the court, within thirty days, the 5 USM-285 forms and summonses, which are required to effect service on the defendants. Id. 6 On October 16, 2023, plaintiff submitted the USM-285 forms but failed to provide new 7 addresses for service on defendants Rios and Bonache. Indeed, he listed the same address I 8 previously advised him was insufficient—“CSP Sacramento Prison, P.O. Box 290066, Represa 9 CA 92671.” On October 24, 2023, I issued a final order directing plaintiff submit the USM-285 10 forms with defendants’ addresses and re-informed plaintiff that a P.O. Box address was 11 insufficient. I again urged plaintiff to seek information for defendants’ addresses through several 12 available methods. ECF No. 28. I warned him that failure to do so would result in a 13 recommendation of dismissal. Id. On November 6, 2023, plaintiff submitted two USM-forms 14 bearing the same P.O. Box address for defendants. ECF No. 29. 15 If a defendant is not served within ninety days after a complaint is filed, the court must, 16 after notice to the plaintiff, dismiss the action without prejudice. Fed. R. Civ. P. 4(m). While 17 prisoners may rely on the U.S. Marshal’s Office to serve a defendant, a district court may dismiss 18 a prisoner’s civil rights complaint for a failure to effect service when the prisoner fails to provide 19 the Marshal with sufficient information to effect service. See Walker v. Sumner, 14 F.3d 1415, 20 1422 (9th Cir. 1994) overruled on other grounds by Sandin v. Conner, 515 U.S. 472, 483-84 21 (1995)); Wilson v. Moreno, No. ED-CV-14-513-JAK (DFM), 2016 WL 827702, at *5 (C.D. Cal. 22 Feb. 8, 2016) (“Courts regularly dismiss actions for failure to make service under Fed. R. Civ. P. 23 4(m) when a plaintiff provides the USMS with an inaccurate or obsolete address for a 24 defendant.”); Hunter v. Galvan, No. CV-21-01228-PHX-SRB (ESW), 2021 WL 5988597, at *1 25 (D. Ariz. Dec. 17, 2021) (“[W]here a prisoner fails to provide the USMS with accurate and 26 sufficient information to effect service of the summons and complaint, a court’s sua sponte 27 dismissal of the unserved defendant(s) is appropriate.”). 28 Plaintiff has been afforded multiple opportunities to provide an address or contact 1 | information for defendants. As neither of the defendants have been served within the required 2 | time period, I recommend that this action be dismissed pursuant to Federal Rule of Civil 3 | Procedure 4(m). 4 Accordingly, it is hereby RECOMMENDED that: 5 1. This action be dismissed without prejudice for failure to serve the defendants within 6 | the time specified under Federal Rule of Civil Procedure 4(m). 7 2. The Clerk of Court be directed to close this matter. 8 These findings and recommendations are submitted to the United States District Judge 9 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 10 | after being served with these findings and recommendations, any party may file written 11 | objections with the court and serve a copy on all parties. Such a document should be captioned 12 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 13 | objections shall be served and filed within fourteen days after service of the objections. The 14 | parties are advised that failure to file objections within the specified time may waive the right to 15 || appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 16 | v. Yist, 951 F.2d 1153 (9th Cir. 1991). 17 19 ( q Sty — Dated: _ January 16, 2024 20 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE

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