(PC) Porter v. Amezcua

• Court: District Court, E.D. California
• Decided: February 21, 2025
• Docket: 1:23-cv-01491
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN LAMAR PORTER, Case No. 1:23-cv-01491-JLT-BAM (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS DEFENDANTS JOHN DOE 1–5 13 v. AND JANE DOE 1–2 FROM ACTION WITHOUT PREJUDICE 14 AMEZCUA, et al., (ECF No. 32) 15 Defendants. FOURTEEN (14) DAY DEADLINE 16 17 I. Procedural History 18 Plaintiff Kevin Lamar Porter (“Plaintiff”) is a state prisoner proceeding pro se and in 19 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on 20 Plaintiff’s first amended complaint against: (1) Defendant Amezcua for retaliation in violation of 21 the First Amendment and a related state law claim for violation of the Bane Act; (2) Defendant 22 Amezcua for excessive force in violation of the Eighth Amendment and related state law claims 23 for battery and violation of the Bane Act for slamming Plaintiff on the ground; (3) Defendants 24 Amezcua, Chao, and John Does 1–5 for excessive force in violation of the Eighth Amendment 25 and related state law claims for battery and violation of the Bane Act for forcefully moving 26 Plaintiff despite his complaints of severe pain; and (4) Defendants Amezcua, Chao, John Does 1– 27 5, and Jane Does 1–2 for deliberate indifference to medical care in violation of the Eighth 28 Amendment and a related claim for violation of the Bane Act. 1 The Court did not find service appropriate for Defendants John Doe 1–5 and Jane Doe 1– 2 2, and ordered Plaintiff to file a motion to substitute the identities of Defendants John Doe 1–5 3 and Jane Doe 1–2 that provided the Court with enough information to locate them for service of 4 process. (ECF No. 32.) Plaintiff was warned that if he failed to comply with the Court’s order, 5 the Court would dismiss any unidentified defendants from this action, without prejudice, for 6 failure to serve process pursuant to Federal Rule of Civil Procedure 4(m). (Id. at 2.) 7 The deadline for Plaintiff’s response to the Court’s November 4, 2024, order has expired. 8 To date, Plaintiff has not filed a motion to substitute the identities of Defendants John Doe 1–5 9 and Jane Doe 1–2 or otherwise complied with the Court’s order. 10 II. Discussion 11 Pursuant to Federal Rule of Civil Procedure 4(m):

12 If a defendant is not served within 90 days after the complaint is filed, the court— 13 on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a 14 specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. 15 16 In cases involving a plaintiff proceeding in forma pauperis, a United States Marshal, upon 17 order of the court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “[A] 18 prisoner ‘is entitled to rely on the U.S. Marshal for service’ . . . as long as he or she ‘provide[s] 19 the necessary information to help effectuate service.’” Schrubb v. Lopez, 617 Fed. Appx. 832, 20 832 (9th Cir. 2015) (quoting Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990), abrogated on 21 other grounds by Sandin v. Connor, 515 U.S. 472 (1995)). “So long as the prisoner has furnished 22 the information necessary to identify the defendant, the marshal’s failure to effect service is 23 ‘automatically good cause . . . .’” Walker v. Sumner, 14 F.3d 1415, 1422 (quoting Sellers v. 24 United States, 902 F.2d 598, 603 (7th Cir.1990)), overruled on other grounds by Sandin, 515 U.S. 25 at 483–84. However, where a pro se plaintiff fails to provide the Marshal with accurate and 26 sufficient information to effect service of the summons and complaint, the Court’s sua sponte 27 dismissal of the unserved defendants is appropriate. Walker, 14 F.3d at 1421–22. 28 /// 1 Plaintiff has been granted an opportunity to provide sufficient information to identify 2 Defendants John Doe 1–5 and Jane Doe 1–2 so the United States Marshal may serve the 3 summons and complaint. Despite a warning that failure to do so would result in dismissal of the 4 unidentified defendants from this action, Plaintiff has not complied with the Court’s order. In 5 addition, Plaintiff has failed to set forth good cause for his failure to identify Defendants John 6 Doe 1–5 and Jane Doe 1–2, and has failed to provide any explanation detailing the efforts he has 7 taken to locate the names of these defendants. 8 III. Recommendation 9 Accordingly, the Court HEREBY RECOMMENDS that Defendants John Doe 1–5 and 10 Jane Doe 1–2 be dismissed from this action, without prejudice, pursuant to Federal Rule of Civil 11 Procedure 4(m). 12 These Findings and Recommendations will be submitted to the United States District 13 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 14 fourteen (14) days after being served with these Findings and Recommendations, the parties may 15 file written objections with the court. The document should be captioned “Objections to 16 Magistrate Judge’s Findings and Recommendations.” Objections, if any, shall not exceed 17 fifteen (15) pages or include exhibits. Exhibits may be referenced by document and page 18 number if already in the record before the Court. Any pages filed in excess of the 15-page 19 limit may not be considered. The parties are advised that failure to file objections within the 20 specified time may result in the waiver of the “right to challenge the magistrate’s factual 21 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838–39 (9th Cir. 2014) (citing Baxter 22 v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 23 IT IS SO ORDERED. 24

25 Dated: February 20, 2025 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 26

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