(PC) Rood v. Department of Corrections

Opinion

1 2 3 4 5 6 7 10 11 COLTON JAMES ROOD, Case No. 1:19-cv-01517-JLT-HBK (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATION 13 v. (Doc. 62) FRAUENHEIM, and RON CARVER, 16 Defendants. 17 18 Colton James Rood is a state prisoner proceeding pro se and in forma pauperis, in this 19 action filed pursuant to 42 U.S.C. § 1983 as screened. (Docs. 27, 33.) The matter was referred to a 20 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 The Magistrate Judge filed Findings and Recommendations, recommending Defendants 22 Philips and Carver be dismissed without prejudice pursuant to Rule 4(m) of the Federal Rules of 23 Civil Procedure. 1 (Doc. 62.) Plaintiff objects to the Findings and Recommendations because, 24 despite the docket indicating he did not respond to the Court’s May 15, 2023 Order to Show 25 Cause, he reports submitting a response on May 23, 2023. (Doc. 63 at 2.) Plaintiff attributes his 26 missing response to an unnamed corrections officer likely throwing his response in the trash. (Id. 27

28 1 Although docketed on August 2, 2023, the Court applies the mailbox rule to prisoners for filing purposes. 1 at 2-3.) Additionally, Plaintiff requests more time to effectuate service on Defendants Philips and 2 Carver stating he had Covid, Pneumonia, and a stomach illness which prevented him from 3 engaging in discovery earlier with Defendants, but at an unidentified time, he sent interrogatories 4 to Defendants. (Id. at 1-2.) Plaintiff believes this set of interrogatories will result in him obtaining 5 the needed information to effectuate discovery on Philips and Carver. (Id.) Plaintiff further 6 elaborates that if Defendants do not provide an adequate response to his interrogatories, then he 7 will file a motion to compel, “once [he] recover[s] from [his] sickness.” (Id. at 2.) 8 If a defendant is not served within 90 days after a complaint is filed, the court must, after 9 notice to the plaintiff, dismiss the action without prejudice. Fed. R. Civ. P. 4(m) (emphasis added). 10 “Pro se litigants must follow the same rules of procedure that govern other litigants.” Thomas v. Scott, 11 2015 U.S. Dist. LEXIS 96365, *6-*7 (C.D. Cal. Jun. 4, 2016) (findings and recommendations to 12 dismiss the prisoner plaintiff’s case for a failure to effect service adopted by Thomas v. Scott, 2015 13 WL 4507255 (C.D. Cal. Jul. 22, 2015)) (quoting King v.Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) 14 (overruled in part by Lacy v. Maricopa County, 693 F.3d 896 (9th Cir. 2021)) (citing Ghazali v. 15 Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (the failure of a pro se litigant to follow the procedural rules 16 justified the dismissal of the pro se litigant’s civil rights action). 17 As an incarcerated pro se plaintiff proceeding in forma pauperis, Plaintiff is entitled to rely on 18 the U.S. Marshal for service of subpoenas for his unincarcerated witnesses. See Puett v. Blandford, 19 912 F.2d 270, 275 (9th Cir. 1990). However, it is ultimately Plaintiff’s responsibility to provide the 20 Marshal with accurate and sufficient information to effect service. See Walker v. Sumner, 14 F.3d 21 1415, 1421–22 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472, 115 22 (1995). 23 Plaintiff has had more than adequate time to engage in discovery with the Defendants to 24 obtain the information needed to effectuate service on Philips and Ron Carver. Rule 4(m) requires 25 that a defendant be served within 90 days. Fed. R. Civ. P. 4(m). As of today, over 450 days has 26 passed since the Court ordered service on all Defendants. (See Doc. 34.) The Court already 27 granted Plaintiff an extension of time to effectuate service on Philips and Carver. (Doc. 45.) 28 Furthermore, despite Plaintiff engaging in discovery with Defendants for over 190 days, he still 1 | has not provided the Court with information to effectuate service on Philips or Carver. Discovery 2 | is scheduled to be completed on November 15, 2023, which is less than two months from the date 3 | of this order. (Doc. 58.) Plaintiff was given almost the entire length of discovery, which is well 4 | over the 90 days prescribed by Rule 4(m), to obtain information to effectuate service on Philips 5 and Carver and Plaintiff still has not provided the Court with any new information. His argument 6 | that he will obtain such information when discovery is about to close is unavailing. 7 According to 28 U.S.C. § 636(b)(1)(C), the Court has conducted a de novo review of this 8 | case. Having carefully reviewed the entire file, the Court finds the Findings and 9 | Recommendations to be supported by the record and by proper analysis. Thus, the Court 10 | ORDERS: 11 1. The Findings and Recommendation, filed on July 17, 2023, (Doc. 62) ARE 13 2. Pursuant to Rule 4(m)Defendants Philips and Ron Carver are DISMISSED 15 3. The Clerk of Court is directed to terminate Defendants Philips and Ron Carver from 16 the docket. 17 19 | Dated: _August 29, 2023 Charis [Tourn TED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28