(PC) Moore v. Butte County

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 RAYMOND E. MOORE, Jr., Case No. 2:22-cv-1517-DJC-JDP (P) 11 Plaintiff, 12 v. ORDER; FINDINGS AND RECOMMENDATIONS 13 BUTTE COUNTY, et al., 14 Defendants. 15 16 Plaintiff, a former pretrial detainee, is proceeding pro se with a civil rights action pursuant 17 to 42 U.S.C. § 1983. The only remaining defendants in this action are Sage and Shoemaker. 18 From a review of the docket, the court is concerned that neither defendant has been properly 19 served, causing this action to stall. Since the dispositive motion deadline has passed without 20 word from plaintiff, the court takes this opportunity to spur on litigation. 21 On September 8, 2023, the court directed the United States Marshal to serve several 22 defendants, including Sage. ECF No. 31. Plaintiff listed Sage’s address at a Wellpath facility in 23 Oroville. Process directed at Sage was returned to the court unserved with an indication that Sage 24 was no longer an employee of Wellpath and Wellpath had no record of Sage’s current address. 25 ECF No. 41. Accordingly, the court ordered plaintiff to promptly seek information for Sage’s 26 address through discovery, the California Public Records Act, Calif. Gov’t. Code § 6250, et seq., 27 or other means available. ECF No. 49. Plaintiff was ordered to complete and return to the court, 28 within thirty days, the USM-285 form and summons. Id. Plaintiff returned a completed USM- 1 285, but again listed Sage’s address as at the Wellpath location. ECF No. 51. Since Sage is no 2 longer a Wellpath employee and Wellpath does not have a current address for Sage, the court did 3 not direct the Marshal to re-serve Wellpath. ECF No. 52. Instead, on July 10, 2024, the court 4 ordered plaintiff to provide a different address or contact information for Sage. Id. Plaintiff was 5 warned that failure to do so would result in a recommendation that this action be dismissed 6 pursuant to Federal Rule of Civil Procedure 4(m). Id.; see Fed. R. Civ. P. 4(m). 7 Plaintiff did not return a USM-285 form to the court or otherwise respond to the July 10 8 order. Now, after having provided plaintiff with ample opportunity to assist in serving Sage, and 9 following the passage of over 90 days since the complaint’s filing, the court recommends that 10 Sage be dismissed for plaintiff’s failure to effectuate service. See Walker v. Sumner, 14 F.3d 11 1415, 1422 (9th Cir. 1994) overruled on other grounds by Sandin v. Conner, 515 U.S. 472, 483- 12 84 (1995)); Wilson v. Moreno, No. ED-CV-14-513-JAK (DFM), 2016 WL 827702, at *5 (C.D. 13 Cal. Feb. 8, 2016) (“Courts regularly dismiss actions for failure to make service under Fed. R. 14 Civ. P. 4(m) when a plaintiff provides the USMS with an inaccurate or obsolete address for a 15 defendant.”). 16 As for defendant Shoemaker, plaintiff has options. Service for Shoemaker was returned 17 as executed, see ECF No. 42. However, the court is unsure whether service was properly 18 effectuated. The USM checked the box indicating personal service but identified a Kerry Cox 19 (RN) as the individual served. See id. Nothing on the service form indicates whether Cox is 20 legally allowed to accept service on Shoemaker’s behalf. With that said, plaintiff may either seek 21 to have the USM re-serve Shoemaker, or he may seek Shoemaker’s entry of default, see Fed. R. 22 Civ. P. 55. If plaintiff wishes to have the USM to re-serve Shoemaker, he must return the USM- 23 285 form and a copy of the second amended complaint within thirty days. 24 Accordingly, it is hereby ORDERED that: 25 1. The Clerk of Court is directed to send to plaintiff one USM-285 form, along with an 26 instruction sheet and a copy of the second amended complaint filed May 22, 2023; 27 2. Within thirty days from the date of this order, plaintiff shall complete and submit the 28 attached Notice of Submission of Documents to the court, with the following documents: 1 a. One completed USM-285 form for defendant Shoemaker; 2 b. One copy of the endorsed amended complaint filed May 22, 2023; and 3 c. One completed summons form (if not previously provided) or show good cause 4 | why he cannot provide such information. 5 Further, it is hereby RECOMMENDED that defendant Sage be dismissed from this action 6 | for plaintiffs failure serve Sage within the time specified under Federal Rule of Civil Procedure 7 | 4am). 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 of 10 | service of these findings and recommendations, any party may file written objections with the 11 | court and serve a copy on all parties. Any such document should be captioned “Objections to 12 | Magistrate Judge’s Findings and Recommendations,” and any response shall be served and filed 13 | within fourteen days of service of the objections. The parties are advised that failure to file 14 | objections within the specified time may waive the right to appeal the District Court’s order. See 15 | Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 16 1991). 17 8 IT IS SO ORDERED.

Dated: _ July 30, 2025 ssn atiow ya 20 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE

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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 RAYMOND E. MOORE, Jr., No. 2:22-cv-1517-DJC-JDP (P) 12 Plaintiff, 13 v. NOTICE OF SUBMISSION OF DOCUMENTS 14 BUTTE COUNTY, et al., 15 Defendant. 16 17 Plaintiff hereby submits the following documents in compliance with the court's order 18 filed _____________________ : 19 ____ completed summons form 20 ____ completed USM-285 forms 21 ____ copies of the ___________________ 22 Complaint 23 DATED: 24 25 26 27 ________________________________ 28 Plaintiff