(PC) Roberson v. Farmbrough

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MORRIS ROBINSON, No. 1:21-cv-00990-NODJ-SAB (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF 13 v. DEFENDANT CERNA PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 14 J. FARMBROUGH, et al., 4(m) 15 Defendants. (ECF No. 86) 16 17 Plaintiff Morris Robinson is proceeding pro se and in forma pauperis in this civil rights 18 action filed pursuant to 42 U.S.C. § 1983. 19 This action proceeds on Plaintiff’s excessive force claim against Defendants Fambrough, 20 Johnson, Silva, Bedolla and Furlong for excessive force, failure to intervene claim against 21 Defendants Cruz and Rodriguez, and deliberate indifference claim against Defendant Leticia Rad 22 Cerna-previously identified by Plaintiff as Serna. However, Defendant Cerna has not been served 23 with process. 24 I. 25 DISCUSSION 26 On February 1, 2024, the United States Marshal (USM) returned the summons unexecuted 27 as to Defendant Cerna, noting that on January 18, 2024, he reached out to the Litigation Coordinator 28 at Kern Valley State Prison (KVSP) “to see if could provide phone number and address on file for 1 when Cerna worked at KVSP. Litco states address and phone is no longer valid nor does he believe 2 could provide that info. Radiology license # provided but doesn’t give address or employer 3 information.” (ECF No. 85.) Then, on February 1, 2024, it was noted that “continued efforts to try 4 to locate address, phone number or place of employment have been unsuccessful.” (Id.) 5 Pursuant to Federal Rule of Civil Procedure 4:

6 If a defendant is not served within 90 days after the complaint is filed, the court “on motion 7 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 specified time. But if the plaintiff 8 shows good cause for the failure, the court must extend the time for service for an appropriate period. 9 Fed. R. Civ. P. 4(m). 10 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the 11 court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(2). “[A]n incarcerated pro 12 se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the 13 summons and complaint and ... should not be penalized by having his action dismissed for failure 14 to effect service where the U.S. Marshal or the court clerk has failed to perform his duties.” Walker 15 v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett v. Blandford, 912 F.2d 270, 275 (9th 16 Cir. 1990)), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). “So long as the 17 prisoner has furnished the information necessary to identify the defendant, the marshal's failure to 18 effect service is ‘automatically good cause....’ ” Walker, 14 F.3d at 1422 (quoting Sellers v. United 19 States, 902 F.2d 598, 603 (7th Cir. 1990)). However, where a pro se plaintiff fails to provide the 20 Marshal with accurate and sufficient information to effect service of the summons and complaint, 21 the court's sua sponte dismissal of the unserved defendants is appropriate. Walker, 14 F.3d at 1421- 22 22. 23 Because the USM has not been successful in locating Defendant Cerna, pursuant to Rule 24 4(m), the Court provided Plaintiff with an opportunity to show cause why Defendant Cerna, should 25 not be dismissed from this action for failure to serve process. (ECF No. 86.) However, Plaintiff 26 has failed to respond to the Court’s order to show cause why Defendant Cerna should not be 27 dismissed and the time to do so has passed. At this juncture, the United States Marshal’s office has 28 1 || exhausted the avenues available to it in attempting to locate and serve Defendant Cerna. It is 2 | Plaintiffs obligation to proceed information necessary to identify and locate a given defendant— 3 || which Plaintiff has not done and is apparently unable to do. Accordingly, dismissal of Defendant 4 || Cerna for failure to serve is warranted. 5 Il. 6 RECOMMENDATION 7 Based on the foregoing, it is HEREBY RECOMMENDED that Defendant Cerna be 8 || dismissed from the action, without prejudice, pursuant to Rule 4(m) of the Federal Rules of Civil 9 || Procedure. 10 This Findings and Recommendation will be submitted to the United States District Judge 11 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen (14) 12 | days after being served with this Findings and Recommendation, Plaintiff may file written 13 || objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 14 || Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 15 || specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 16 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 17 18 IT IS SO ORDERED. F- 2 ee 19 | Dated: _March 4, 2024 _ OO UNITED STATES MAGISTRATE JUDGE

21 22 23 24 25 26 27 28