(PC) Puckett v. Baraona

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 DURRELL ANTHONY PUCKETT, Case No. 1:21-cv-01448-KES-BAM (PC) 11 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION TO AMEND AND SUBSTITUTE IDENTITY 12 v. OF DEFENDANT JANE DOE NURSE (ECF No. 81) 13 BARAONA, et al., ORDER DIRECTING CLERK OF COURT TO 14 Defendants. FILE AMENDED COMPLAINT LODGED ON FEBRUARY 26, 2024 AS THE SECOND 15 AMENDED COMPLAINT (ECF No. 80) 16 FINDINGS AND RECOMMENDATIONS TO 17 DISMISS DEFENDANT DOE 1 FROM ACTION WITHOUT PREJUDICE 18 FOURTEEN (14) DAY DEADLINE 19 20 Plaintiff Durrell Anthony Puckett (“Plaintiff”) is a state prisoner proceeding pro se and in 21 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on 22 Plaintiff’s first amended complaint against: (1) Defendants A. Baraona, R. Burnitzki,1 R. Leos, H. 23 Hernandez, E. Diaz, and Doe 1 for excessive force in violation of the Eighth Amendment; 24 (2) Defendant R. Leos for sexual assault in violation of the Eighth Amendment; and 25 (3) Defendants A. Ruiz, R. Martinez, E. Ruiz, G. Meier,2 R. Gutierrez, J. Cruz, K. Allison 26 (Cronister), and Jane Doe Nurse for failure to protect in violation of the Eighth Amendment. 27 1 Erroneously sued as “Burneszki.” 28 2 Erroneously sued as “Meiers.” 1 I. Defendant Jane Doe Nurse 2 Following multiple extensions of time and resolution of the parties’ discovery dispute, on 3 February 16, 2024, the Court granted Plaintiff a final opportunity to file a motion to substitute the 4 identities of Defendants Doe 1 and Jane Doe Nurse. (ECF No. 77.) 5 On February 26, 2024, Plaintiff filed a motion to substitute the identity of Defendant Jane 6 Doe, together with a lodged amended complaint. (ECF Nos. 80, 81.) Plaintiff states that 7 Defendant Jane Doe should be removed and replaced with Defendant T. Price. (ECF No. 81.) 8 Plaintiff has not provided any information regarding Defendant Doe 1. 9 Defendants did not file an opposition or other response to Plaintiff’s motion to amend and 10 substitute the identify of Defendant Jane Doe Nurse, and the deadline to do so has expired. The 11 motion is deemed submitted. Local Rule 230(l). 12 In the lodged amended complaint, Plaintiff has substituted the name of T. Price for any 13 references to Defendant Jane Doe Nurse, and the allegations therein are otherwise identical to 14 those raised in the first amended complaint and supplement. (Compare ECF Nos. 10 and 11 with 15 ECF No. 80.) As such, and in light of Defendants’ apparent non-opposition, the Court finds that 16 screening of the lodged amended complaint is unnecessary. The motion to amend and substitute 17 the identity of Defendant Jane Doe is therefore granted. 18 By instant order, the Court confirms that the amended complaint lodged on February 26, 19 2024 is now the operative second amended complaint in this action. To the extent the second 20 amended complaint includes claims or defendants that were previously dismissed, the Court 21 clarifies that this action proceeds only on those claims found cognizable in the first amended 22 complaint, (ECF Nos. 13, 16), and as limited by the findings and recommendations regarding 23 Defendant Doe 1 below. 24 The Court will direct service of the second amended complaint on Defendant T. Price by 25 separate order. 26 /// 27 /// 28 /// 1 II. Defendant Doe 1 2 Pursuant to Federal Rule of Civil Procedure 4(m):

3 If a defendant is not served within 90 days after the complaint is filed, the court— 4 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 5 specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. 6 7 In cases involving a plaintiff proceeding in forma pauperis, a United States Marshal, upon 8 order of the court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “[A] 9 prisoner ‘is entitled to rely on the U.S. Marshal for service’ . . . as long as he or she ‘provide[s] 10 the necessary information to help effectuate service.’” Schrubb v. Lopez, 617 Fed. Appx. 832, 11 832 (9th Cir. 2015) (quoting Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990), abrogated on 12 other grounds by Sandin v. Connor, 515 U.S. 472 (1995)). “So long as the prisoner has furnished 13 the information necessary to identify the defendant, the marshal’s failure to effect service is 14 ‘automatically good cause . . . .’” Walker v. Sumner, 14 F.3d 1415, 1422 (quoting Sellers v. 15 United States, 902 F.2d 598, 603 (7th Cir.1990)), overruled on other grounds by Sandin, 515 U.S. 16 at 483–84. However, where a pro se plaintiff fails to provide the Marshal with accurate and 17 sufficient information to effect service of the summons and complaint, the Court’s sua sponte 18 dismissal of the unserved defendants is appropriate. Walker, 14 F.3d at 1421–22. 19 Plaintiff has been granted multiple opportunities to provide sufficient information to 20 identify Defendant Doe 1 so the United States Marshal may serve the summons and complaint. 21 Despite a warning that failure to do so would result in dismissal of Defendant Doe 1 from this 22 action, Plaintiff has not complied with the Court’s order. 23 III. Order and Recommendations 24 Accordingly, IT IS HEREBY ORDERED as follows: 25 1. Plaintiff’s motion to amend and substitute the identity of Defendant Jane Doe Nurse, 26 (ECF No. 81), is GRANTED; and 27 2. The Clerk of the Court is directed to: 28 a. File the February 26, 2024 lodged amended complaint, (ECF No. 80), as the 1 second amended complaint; and 2 b. Substitute Defendant T. Price for Defendant Jane Doe Nurse. 3 * * * 4 Furthermore, the Court HEREBY RECOMMENDS as follows: 5 1. Defendant Doe 1 be dismissed from this action, without prejudice, pursuant to Federal 6 Rule of Civil Procedure 4(m); and 7 2. This action proceed on Plaintiff’s second amended complaint only against: (1) Defendants 8 A. Baraona, R. Burnitzki, R. Leos, H. Hernandez, and E. Diaz for excessive force in 9 violation of the Eighth Amendment; (2) Defendant R. Leos for sexual assault in violation 10 of the Eighth Amendment; and (3) Defendants A. Ruiz, R. Martinez, E. Ruiz, G. Meier, R. 11 Gutierrez, J. Cruz, K. Allison (Cronister), and T. Price for failure to protect in violation of 12 the Eighth Amendment. 13 * * * 14 These Findings and Recommendations will be submitted to the United States District 15 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 16 fourteen (14) days after being served with these Findings and Recommendations, the parties may 17 file written objections with the Court. The document should be captioned “Objections to 18 Magistrate Judge’s Findings and Recommendations.” The parties are advised that failure to file 19 objections within the specified time may result in the waiver of the “right to challenge the 20 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 21 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 22 IT IS SO ORDERED. 23

24 Dated: March 20, 2024 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 25

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