1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD SCOTT KINDRED, Case No. 1:18-cv-00554-DAD-EPG 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT JOHN/JANE 14 BRANDON PRICE, et al., DOES 1-10 BE DISMISSED WITHOUT PREJUDICE 15 Defendants. (ECF Nos. 23, 79) 16 TWENTY-ONE DAY DEADLINE 17
18 19 Plaintiff Richard Scott Kindred (“Plaintiff”) is a civil detainee proceeding pro se and in 20 forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. For the following 21 reasons, the Court recommends that John/Jane Does 1-10 be dismissed without prejudice for failure to serve, failure to prosecute, and failure to obey a court order. 22 I. PROCEDURAL HISTORY 23 On July 8, 2019, the Court entered findings and recommendations recommending that this 24 action proceed on Plaintiff’s: (1) Fourth Amendment search and seizure claims against 25 Defendants Brandon Price, J. Corona, Jose Lopez (collectively “Defendants”), and John/Jane 26 Does 1-5; (2) First Amendment free exercise claim against Defendants Corona and Lopez; and 27 (3) First Amendment access to courts claim against John/Jane Does 6-10. (ECF No. 19.) The 28 1 Court recommended that all other claims and defendants be dismissed with prejudice. (Id.) 2 District Judge Dale A. Drozd entered an order adopting the Court’s findings and 3 recommendations in full on October 18, 2019. (ECF No. 23.) 4 On October 24, 2019, the Court entered an order authorizing service of the summons and complaint on Defendants Price, Corona, and Lopez. (ECF No. 24.) This order advised Plaintiff 5 that Doe defendants cannot be served until Plaintiff has identified them and amended his 6 complaint to substitute named defendants in place of the Doe defendants. (Id. at 2.) Plaintiff was 7 also advised that he would be required to identify Doe defendants as the litigation proceeds. (Id.) 8 On April 30, 2020, the Court entered a Scheduling Order which, among other things, advised the 9 parties that discovery was open. (ECF No. 43 at 1.) 10 On June 9, 2021, the Court entered an order requiring Plaintiff to show cause why 11 John/Jane Does 1- 10 should not be dismissed from this action. (ECF No. 79.) Plaintiff was 12 directed to respond in writing within forty-five days from service of the order. (Id.) Additionally, 13 Plaintiff was warned that failure to respond to the order would result in a recommendation that 14 John/Jane Does 1-10 be dismissed without prejudice. The Court’s order to show cause was served 15 on Plaintiff by mail on June 9, 2019. To date, Plaintiff has not responded to the order to show 16 cause and the time to do so has expired. 17 II. DISCUSSION 18 A. Failure to Serve John/Jane Does 1-10 19 Pursuant to Federal Rule of Civil Procedure 4(m), 20 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 21 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 22 extend the time for service for an appropriate period. 23 Fed. R. Civ. P. 4(m). 24 In cases involving a plaintiff proceeding in forma pauperis, the United States Marshal 25 (“the Marshal”), upon order of the Court, shall serve the summons and the complaint. Fed. R. 26 Civ. P. 4(c)(3). “‘[A] pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the summons and complaint and ... should not be penalized by having his 27 action dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed 28 1 to perform his duties[.]” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett v. 2 Blandford, 912 F.2d 270, 275 (9th Cir. 1990) (alterations in original)), overruled on other 3 grounds by Sandin v. Connor, 515 U.S. 472 (1995). However, where a plaintiff proceeding in 4 forma pauperis fails to provide the Marshal with accurate and sufficient information to effect service of the summons and complaint, dismissal of the unserved defendant is appropriate. 5 Walker, 14 F.3d at 1421-22. 6 This case has been pending since 2018 and, to date, Plaintiff has not filed a motion to 7 amend his complaint or otherwise identified the Doe defendants. Discovery has concluded and 8 Defendants Price, Corona, and Lopez have filed a motion for summary judgment. Thus, Plaintiff 9 has failed to provide the Marshal with accurate and sufficient information to effect service of the 10 summons and complaint on John/Jane Does 1-10, and has failed to serve John/Jane Does 1-10 11 within the time period required by Federal Rule of Civil Procedure 4(m). 12 Accordingly, the Court will recommend that John/Jane Does 1-10 be dismissed from the 13 action without prejudice. 14 B. Failure to Prosecute and Comply with a Court Order 15 Failure to prosecute and failure to comply with a court order may be grounds for 16 dismissal. “In determining whether to dismiss a[n] [action] for failure to prosecute or failure to 17 comply with a court order, the Court must weigh the following factors: (1) the public’s interest in 18 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 19 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 20 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 21 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 22 “‘The public’s interest in expeditious resolution of litigation always favors dismissal.’” Id. 23 (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, this factor weighs in favor of dismissal of John/Jane Does 1-10. 24 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 25 determine whether the delay in a particular case interferes with docket management and the 26 public interest…. It is incumbent upon the Court to manage its docket without being subject to 27 routine noncompliance of litigants....” Pagtalunan, 291 at 639. Plaintiff has failed to respond to 28 1 the Court’s order to show cause. A failure to respond to the Court’s orders delays he case and 2 interferes with docket management. Therefore, the second factor weighs in favor of dismissal. 3 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 4 and of itself to warrant dismissal.” Id. at 642 (citing Yourish, 191 F.3d at 991). However, “delay inherently increases the risk that witnesses’ memories will fade and evidence will become stale,” 5 id. at 643, and it is Plaintiff’s failure to comply with a court order and to prosecute this case as to 6 John/Jane Does 1-10 that is causing delay. Therefore, the third factor weighs in favor of 7 dismissal.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD SCOTT KINDRED, Case No. 1:18-cv-00554-DAD-EPG 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT JOHN/JANE 14 BRANDON PRICE, et al., DOES 1-10 BE DISMISSED WITHOUT PREJUDICE 15 Defendants. (ECF Nos. 23, 79) 16 TWENTY-ONE DAY DEADLINE 17
18 19 Plaintiff Richard Scott Kindred (“Plaintiff”) is a civil detainee proceeding pro se and in 20 forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. For the following 21 reasons, the Court recommends that John/Jane Does 1-10 be dismissed without prejudice for failure to serve, failure to prosecute, and failure to obey a court order. 22 I. PROCEDURAL HISTORY 23 On July 8, 2019, the Court entered findings and recommendations recommending that this 24 action proceed on Plaintiff’s: (1) Fourth Amendment search and seizure claims against 25 Defendants Brandon Price, J. Corona, Jose Lopez (collectively “Defendants”), and John/Jane 26 Does 1-5; (2) First Amendment free exercise claim against Defendants Corona and Lopez; and 27 (3) First Amendment access to courts claim against John/Jane Does 6-10. (ECF No. 19.) The 28 1 Court recommended that all other claims and defendants be dismissed with prejudice. (Id.) 2 District Judge Dale A. Drozd entered an order adopting the Court’s findings and 3 recommendations in full on October 18, 2019. (ECF No. 23.) 4 On October 24, 2019, the Court entered an order authorizing service of the summons and complaint on Defendants Price, Corona, and Lopez. (ECF No. 24.) This order advised Plaintiff 5 that Doe defendants cannot be served until Plaintiff has identified them and amended his 6 complaint to substitute named defendants in place of the Doe defendants. (Id. at 2.) Plaintiff was 7 also advised that he would be required to identify Doe defendants as the litigation proceeds. (Id.) 8 On April 30, 2020, the Court entered a Scheduling Order which, among other things, advised the 9 parties that discovery was open. (ECF No. 43 at 1.) 10 On June 9, 2021, the Court entered an order requiring Plaintiff to show cause why 11 John/Jane Does 1- 10 should not be dismissed from this action. (ECF No. 79.) Plaintiff was 12 directed to respond in writing within forty-five days from service of the order. (Id.) Additionally, 13 Plaintiff was warned that failure to respond to the order would result in a recommendation that 14 John/Jane Does 1-10 be dismissed without prejudice. The Court’s order to show cause was served 15 on Plaintiff by mail on June 9, 2019. To date, Plaintiff has not responded to the order to show 16 cause and the time to do so has expired. 17 II. DISCUSSION 18 A. Failure to Serve John/Jane Does 1-10 19 Pursuant to Federal Rule of Civil Procedure 4(m), 20 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 21 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 22 extend the time for service for an appropriate period. 23 Fed. R. Civ. P. 4(m). 24 In cases involving a plaintiff proceeding in forma pauperis, the United States Marshal 25 (“the Marshal”), upon order of the Court, shall serve the summons and the complaint. Fed. R. 26 Civ. P. 4(c)(3). “‘[A] pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the summons and complaint and ... should not be penalized by having his 27 action dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed 28 1 to perform his duties[.]” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett v. 2 Blandford, 912 F.2d 270, 275 (9th Cir. 1990) (alterations in original)), overruled on other 3 grounds by Sandin v. Connor, 515 U.S. 472 (1995). However, where a plaintiff proceeding in 4 forma pauperis fails to provide the Marshal with accurate and sufficient information to effect service of the summons and complaint, dismissal of the unserved defendant is appropriate. 5 Walker, 14 F.3d at 1421-22. 6 This case has been pending since 2018 and, to date, Plaintiff has not filed a motion to 7 amend his complaint or otherwise identified the Doe defendants. Discovery has concluded and 8 Defendants Price, Corona, and Lopez have filed a motion for summary judgment. Thus, Plaintiff 9 has failed to provide the Marshal with accurate and sufficient information to effect service of the 10 summons and complaint on John/Jane Does 1-10, and has failed to serve John/Jane Does 1-10 11 within the time period required by Federal Rule of Civil Procedure 4(m). 12 Accordingly, the Court will recommend that John/Jane Does 1-10 be dismissed from the 13 action without prejudice. 14 B. Failure to Prosecute and Comply with a Court Order 15 Failure to prosecute and failure to comply with a court order may be grounds for 16 dismissal. “In determining whether to dismiss a[n] [action] for failure to prosecute or failure to 17 comply with a court order, the Court must weigh the following factors: (1) the public’s interest in 18 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 19 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 20 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 21 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 22 “‘The public’s interest in expeditious resolution of litigation always favors dismissal.’” Id. 23 (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, this factor weighs in favor of dismissal of John/Jane Does 1-10. 24 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 25 determine whether the delay in a particular case interferes with docket management and the 26 public interest…. It is incumbent upon the Court to manage its docket without being subject to 27 routine noncompliance of litigants....” Pagtalunan, 291 at 639. Plaintiff has failed to respond to 28 1 the Court’s order to show cause. A failure to respond to the Court’s orders delays he case and 2 interferes with docket management. Therefore, the second factor weighs in favor of dismissal. 3 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 4 and of itself to warrant dismissal.” Id. at 642 (citing Yourish, 191 F.3d at 991). However, “delay inherently increases the risk that witnesses’ memories will fade and evidence will become stale,” 5 id. at 643, and it is Plaintiff’s failure to comply with a court order and to prosecute this case as to 6 John/Jane Does 1-10 that is causing delay. Therefore, the third factor weighs in favor of 7 dismissal. 8 As for the availability of lesser sanctions, at this stage in the proceedings there is little 9 available to the Court which would constitute a satisfactory lesser sanction while protecting the 10 Court from further unnecessary expenditure of its scarce resources. Considering Plaintiff’s in 11 forma pauperis status, monetary sanctions are of little use. And, in light of the status of the case 12 and Plaintiff’s failure to identify John/Jane Does 1-10 for service, the preclusion of evidence or 13 witnesses is not available. 14 The Court will recommend dismissal of John/Jane Does 1-10 without prejudice. Because 15 the dismissal being considered in this case is without prejudice, the Court is stopping short of 16 using the harshest possible sanction of dismissal with prejudice. 17 Finally, because public policy favors disposition on the merits, this factor weighs against 18 dismissal of John/Jane Does 1-10. Id. 19 After weighing the factors, the Court finds that dismissal of John/Jane Does 1-10 without 20 prejudice is appropriate. 21 IV. RECOMMENDATION 22 Based on the foregoing, the Court HEREBY RECOMMENDS that John/Jane Does 1-10 23 be dismissed from this action without prejudice due to failure to prosecute, failure to comply with a court order, and failure to provide the Marshal with accurate and sufficient information to effect 24 service of the summons and complaint on the Doe Defendants within the time period prescribed 25 by Federal Rule of Civil Procedure 4(m). 26 These findings and recommendations are submitted to the United States district judge 27 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within twenty-one 28 1 | (21) days after being served with these findings and recommendations, any party may file written 2 | objections with the court. Such a document should be captioned “Objections to Magistrate Judge's 3 | Findings and Recommendations.” Any reply to the objections shall be served and filed within 4 | fourteen (14) days after service of the objections. The parties are advised that failure to file 5 | objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 6 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 7 (9th Cir. 1991)). 8 IT IS SO ORDERED. 9 10 | Dated: _ August 13, 2021 [spe ey □□ UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28