(PC) Paschall v. Johal

Opinion

1 2 3 4 5 6 7 10 11 LAMAR PASCHALL, Case No.: 1:24-cv-00154-JLT-SKO 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS JANE DOE AND JOHN DOE 13 v. DEFENDANTS

14 AMANDEEP JOHAL, et al., 14-DAY OBJECTION DEADLINE

15 Defendants.

17 Plaintiff Lamar Paschall is proceeding pro se and in forma pauperis in this civil rights 18 action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s Eighth Amendment 19 deliberate indifference to serious medical needs claims against Defendants Fu, Smith, Sinclair, 20 Jane Doe, and John Doe. 22 On May 13, 2025, this Court issued its Order Granting Plaintiff Ninety Days Within 23 Which to Identify Jane Doe and John Doe. (Doc. 15.) Plaintiff was directed to “substitute these 24 defendants’ actual names by filing a ‘notice of substitution’” within 90 days. (Id. at 3.) More than 25 90 days have passed, but Plaintiff has failed to file a notice of substitution. 27 Rule 4(m) of the Federal Rules of Civil Procedure provides: 1 the court - on motion or on its own after notice to the plaintiff - must dismiss the action without prejudice against that defendant or order 2 that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for 3 service for an appropriate period. 4 Fed. R. Civ. P. 4(m). 5 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the 6 Court, shall serve the summons and the complaint. 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). 7 “[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. 8 Marshal for service of the summons and complaint and [he] should not be penalized by having his 9 action dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed 10 to perform his duties.” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (internal quotations 11 & citation omitted), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). “So 12 long as the prisoner has furnished the information necessary to identify the defendant, the 13 marshal's failure to effect service is automatically good cause....” Walker, 14 F.3d at 1422 14 (internal quotations & citation omitted). However, where a pro se plaintiff fails to provide the 15 Marshal with accurate and sufficient information to effect service of the summons and complaint, 16 the Court's sua sponte dismissal of the unserved defendants is appropriate. Walker, 14 F.3d at 17 1421-22. The ninety-day deadline under Rule 4(m) applies to service on Doe Defendants. See 18 Ticketmaster L.L.C. v. Prestige Entm't W., Inc., 315 F.Supp.3d 1147, 1158 (C.D. Cal. 2018); Tabi 19 v. Doe, No. EDCV 18-714 DMG(JC), 2019 WL 4013444, at *1 (C.D. Cal. Aug. 26, 2019) 20 (dismissing action against Doe Defendants without prejudice for failure to serve within Rule 21 4(m)’s 90-day deadline). 22 Where a plaintiff has failed to effect service in accordance with Rule 4(m) and has failed 23 to comply with the orders instructing him to identify the defendant, dismissal of a Doe defendant 24 is warranted. See Williby v. California, 276 F. App’x 663, 665 (9th Cir. 2008) (holding district 25 court’s sua sponte dismissal of Doe defendants was merited where plaintiff had failed to identify 26 defendants within allotted discovery period); see also Flowers v. Toon, No. 1:19-cv-01027-JLT- 27 CDB (PC), 2023 WL 2347687, at *2 (E.D. Cal. Mar. 3, 2023) (holding plaintiff was afforded 1 “ample time and opportunity to identify, substitute, and serve the Doe defendants” and denying 2 reconsideration of the dismissal of Does 1-3); West v. Federal Bureau of Prisons, No. 1:09-CV- 3 01277-LJO-GBC (PC), 2012 WL 893779, at *4 (E.D. Cal. Mar. 15, 2012) (recommending 4 dismissal of Defendant Doe 3 because plaintiff was afforded “sufficient opportunity to pursue 5 discovery to identify Doe Defendants” but failed to do so within prescribed period), 6 recommendation adopted, 2012 WL 1391938 (E.D. Cal. Apr. 20, 2012). 7 As the Court’s May 13, 2025, order explained, the United States Marshal cannot serve 8 Doe defendants, and it is Plaintiff’s obligation to identify Jane Doe and John Doe so service can 9 be affected. (See Doc. 15 at 1-2.) Plaintiff was also advised of the requirements for issuance of a 10 subpoena duces tecum to obtain the Doe Defendants’ identities, and potential alternative means 11 for obtaining their identities. (Id. at 2-3.) Finally, Plaintiff was warned that “If, within 90 days, 12 Plaintiff fails to file a notice of substitution that provides the actual names of Jane Doe and/or 13 John Doe, the Court will recommend dismissal, without prejudice, of any such individual.” (Id. at 14 3-4.) 15 Because Plaintiff has failed to identify the Doe Defendants and to request substitution, or 16 to otherwise establish that service of Jane Doe and John Doe can be accomplished, dismissal of 17 these Doe Defendants is warranted. Walker, 14 F.3d at 1421-22; Williby, 276 F. App’x at 665; 18 West, 2012 WL 893779, at *4. 20 Accordingly, for the reasons given above, the Court RECOMMENDS that Jane Doe and 21 John Doe be dismissed without prejudice for Plaintiff’s failure to serve pursuant to Rule 4(m) of 22 the Federal Rules of Civil Procedure. 23 These Findings and Recommendations will be submitted to the United States District 24 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 25 after being served with a copy of these Findings and Recommendations, a party may file written 26 objections with the Court. Local Rule 304(b). The document should be captioned, “Objections to 27 Magistrate Judge’s Findings and Recommendations” and shall not exceed fifteen (15) pages 1 the Objections. To the extent a party wishes to refer to any exhibit(s), the party should reference 2 the exhibit in the record by its CM/ECF document and page number, when possible, or otherwise 3 reference the exhibit with specificity. Any pages filed in excess of the fifteen (15) page limitation 4 may be disregarded by the District Judge when reviewing these Findings and Recommendations 5 under 28 U.S.C. § 636(b)(l)(C). A party’s failure to file any objections within the specified time 6 may result in the waiver of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 7 (9th Cir. 2014). 8 IT IS SO ORDERED. 9

10 Dated: August 21, 2025 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 11

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