1 2 3 4 5 6 7 10 11 WILLIAM JAMES WALLACE, II, Case No. 1:20-cv-00844-JLT-EPG (PC) 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT JOHN DOE BE 14 J. WHITE, et al., DISMISSED WITHOUT PREJUDICE 15 Defendants. (ECF No. 50) 16 TWENTY-ONE (21) DAY DEADLINE 17 Plaintiff William James Wallace, II (“Plaintiff”) is a former state prisoner proceeding pro 18 se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. For the 19 following reasons, the Court recommends that Defendant John Doe be dismissed without 20 prejudice for failure to serve, failure to prosecute, and failure to obey a court order. 21 I. PROCEDURAL HISTORY 22 This case proceeds on Plaintiff’s Eighth Amendment claim for unconstitutional conditions 23 of confinement against Defendants Lopez, Wade, White and John Doe. (ECF Nos. 18, 19.) In 24 relevant part, Plaintiff’s operative complaint alleges that Unit H2 has inoperable plumbing, toilets 25 overflow, and the floors are constantly covered in human waste. (See ECF No. 18 at 4.) 26 According to Plaintiff, he reported the unsanitary environment to the Doe defendant, and they 27 took no actions to abate further exposure to human waste. (Id.) 28 On March 11, 2021, the Court entered an order authorizing service of the summons and 1 complaint on Defendants Lopez, Wade, and White. This order advised Plaintiff that Doe 2 defendants cannot be served until Plaintiff has identified them and amended his complaint to 3 substitute named defendants in place of the Doe defendants. (Id. at 2.) Plaintiff was also advised 4 that he would be required to identify Doe defendants as the litigation proceeds. (Id.) On July 9, 2021, the Court entered an order permitting Plaintiff to subpoena documents 5 from the Wasco State Prison that may allow him to identify the Doe defendant. (ECF No. 38.) 6 The Court further set a deadline of 120 days from the date of service of the order for Plaintiff to 7 file a motion to substitute the named individuals in place of the Doe defendant. (Id.) Plaintiff was 8 served with the Court’s order by mail on July 9, 2021. 9 On July 22, 2021, Plaintiff submitted a USM-285 form and an AO88B subpoena form. 10 (See ECF No. 39.) However, the documents identified in the subpoena were not relevant to 11 identifying the Doe defendant. (See ECF No. 40 at 2.) Thus, on July 26, 2021, the Court entered 12 an order permitting Plaintiff to complete and return new subpoena and USM-285 forms. (ECF 13 No. 40.) The Court further extended the deadline for Plaintiff to file a motion to substitute named 14 defendants in place of John Doe. (Id.) Plaintiff was directed to file his motion to substitute within 15 120 days of service of the Court’s order. (Id.) Plaintiff was served with the Court’s order by mail 16 on July 26, 2021. 17 Plaintiff subsequently completed and returned the subpoena and USM-285 forms and, on 18 August 17, 2021, the Court entered an order directing the United States Marshal to serve the 19 subpoena on the Warden of Wasco State Prison. (ECF No. 42.) The United States Marshal filed a 20 return of service for the subpoena on August 19, 2021. (ECF No. 43.) 21 Pursuant to the Court’s July 26, 2021 order, the deadline for Plaintiff to file a motion to 22 substitute named defendants in place of John Doe was November 26, 2021. (ECF No. 40.) Fed. R. 23 Civ. P. 6(d). However, Plaintiff failed to file the required motion and, on December 13, 2021, the Court entered an order requiring Plaintiff to show cause why John Doe should not be dismissed 24 from this action. (ECF No. 50.) Plaintiff was directed to respond in writing within thirty days 25 from service of the order. (Id.) Plaintiff was also warned that failure to respond to the order would 26 result in a recommendation that John Doe be dismissed without prejudice. (Id.) 27 The Court’s order to show cause was served on Plaintiff by mail on December 13, 2020. 28 1 To date, Plaintiff has not responded to the order to show cause and the time to do so has expired.1 3 A. Failure to Serve John Doe 4 Pursuant to Federal Rule of Civil Procedure 4(m), If a defendant is not served within 90 days after the complaint is filed, the court— 5 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 6 specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. 7 Fed. R. Civ. P. 4(m). 8 In cases involving a plaintiff proceeding in forma pauperis, the United States Marshal 9 (“the Marshal”), upon order of the Court, shall serve the summons and the complaint. Fed. R. 10 Civ. P. 4(c)(3). “‘[A] pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. 11 Marshal for service of the summons and complaint and ... should not be penalized by having his 12 action dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed 13 to perform his duties[.]” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett v. 14 Blandford, 912 F.2d 270, 275 (9th Cir. 1990) (alterations in original)), overruled on other 15 grounds by Sandin v. Connor, 515 U.S. 472 (1995). However, where a plaintiff proceeding in 16 forma pauperis fails to provide the Marshal with accurate and sufficient information to effect 17 service of the summons and complaint, dismissal of the unserved defendant is appropriate. 18 Walker, 14 F.3d at 1421-22. 19 This case has been pending since June 2020. As described above, despite discovery being 20 opened on the issue of the identity of John Doe and Plaintiff being given more than four months 21 to file a motion to substitute, Plaintiff failed to identify John Doe. Thus, Plaintiff has failed to 22 provide the Marshal with accurate and sufficient information to effect service of the summons 23 and complaint on John Doe, and has failed to serve John Doe within the time period required by 24 Federal Rule of Civil Procedure 4(m). 25 Accordingly, the Court will recommend that Defendant John Doe be dismissed from the 26 action without prejudice.
27 1 Defendants Lopez, Wade, and White have moved for summary judgment on the ground that Plaintiff failed to properly exhaust his administrative remedies regarding his Eighth Amendment claim and the Court has entered 28 findings and recommendations that the motion be granted. (ECF Nos. 47, 53.) 1 B. Failure to Prosecute and Comply with a Court Order 2 Failure to prosecute and failure to comply with a court order may be grounds for 3 dismissal. “In determining whether to dismiss a[n] [action] for failure to prosecute or failure to 4 comply with a court order, the Court must weigh the following factors: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 5 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 6 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 7 642 (9th Cir. 2002) (citing Ferdik v.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 6 7 10 11 WILLIAM JAMES WALLACE, II, Case No. 1:20-cv-00844-JLT-EPG (PC) 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT JOHN DOE BE 14 J. WHITE, et al., DISMISSED WITHOUT PREJUDICE 15 Defendants. (ECF No. 50) 16 TWENTY-ONE (21) DAY DEADLINE 17 Plaintiff William James Wallace, II (“Plaintiff”) is a former state prisoner proceeding pro 18 se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. For the 19 following reasons, the Court recommends that Defendant John Doe be dismissed without 20 prejudice for failure to serve, failure to prosecute, and failure to obey a court order. 21 I. PROCEDURAL HISTORY 22 This case proceeds on Plaintiff’s Eighth Amendment claim for unconstitutional conditions 23 of confinement against Defendants Lopez, Wade, White and John Doe. (ECF Nos. 18, 19.) In 24 relevant part, Plaintiff’s operative complaint alleges that Unit H2 has inoperable plumbing, toilets 25 overflow, and the floors are constantly covered in human waste. (See ECF No. 18 at 4.) 26 According to Plaintiff, he reported the unsanitary environment to the Doe defendant, and they 27 took no actions to abate further exposure to human waste. (Id.) 28 On March 11, 2021, the Court entered an order authorizing service of the summons and 1 complaint on Defendants Lopez, Wade, and White. This order advised Plaintiff that Doe 2 defendants cannot be served until Plaintiff has identified them and amended his complaint to 3 substitute named defendants in place of the Doe defendants. (Id. at 2.) Plaintiff was also advised 4 that he would be required to identify Doe defendants as the litigation proceeds. (Id.) On July 9, 2021, the Court entered an order permitting Plaintiff to subpoena documents 5 from the Wasco State Prison that may allow him to identify the Doe defendant. (ECF No. 38.) 6 The Court further set a deadline of 120 days from the date of service of the order for Plaintiff to 7 file a motion to substitute the named individuals in place of the Doe defendant. (Id.) Plaintiff was 8 served with the Court’s order by mail on July 9, 2021. 9 On July 22, 2021, Plaintiff submitted a USM-285 form and an AO88B subpoena form. 10 (See ECF No. 39.) However, the documents identified in the subpoena were not relevant to 11 identifying the Doe defendant. (See ECF No. 40 at 2.) Thus, on July 26, 2021, the Court entered 12 an order permitting Plaintiff to complete and return new subpoena and USM-285 forms. (ECF 13 No. 40.) The Court further extended the deadline for Plaintiff to file a motion to substitute named 14 defendants in place of John Doe. (Id.) Plaintiff was directed to file his motion to substitute within 15 120 days of service of the Court’s order. (Id.) Plaintiff was served with the Court’s order by mail 16 on July 26, 2021. 17 Plaintiff subsequently completed and returned the subpoena and USM-285 forms and, on 18 August 17, 2021, the Court entered an order directing the United States Marshal to serve the 19 subpoena on the Warden of Wasco State Prison. (ECF No. 42.) The United States Marshal filed a 20 return of service for the subpoena on August 19, 2021. (ECF No. 43.) 21 Pursuant to the Court’s July 26, 2021 order, the deadline for Plaintiff to file a motion to 22 substitute named defendants in place of John Doe was November 26, 2021. (ECF No. 40.) Fed. R. 23 Civ. P. 6(d). However, Plaintiff failed to file the required motion and, on December 13, 2021, the Court entered an order requiring Plaintiff to show cause why John Doe should not be dismissed 24 from this action. (ECF No. 50.) Plaintiff was directed to respond in writing within thirty days 25 from service of the order. (Id.) Plaintiff was also warned that failure to respond to the order would 26 result in a recommendation that John Doe be dismissed without prejudice. (Id.) 27 The Court’s order to show cause was served on Plaintiff by mail on December 13, 2020. 28 1 To date, Plaintiff has not responded to the order to show cause and the time to do so has expired.1 3 A. Failure to Serve John Doe 4 Pursuant to Federal Rule of Civil Procedure 4(m), If a defendant is not served within 90 days after the complaint is filed, the court— 5 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 6 specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. 7 Fed. R. Civ. P. 4(m). 8 In cases involving a plaintiff proceeding in forma pauperis, the United States Marshal 9 (“the Marshal”), upon order of the Court, shall serve the summons and the complaint. Fed. R. 10 Civ. P. 4(c)(3). “‘[A] pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. 11 Marshal for service of the summons and complaint and ... should not be penalized by having his 12 action dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed 13 to perform his duties[.]” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett v. 14 Blandford, 912 F.2d 270, 275 (9th Cir. 1990) (alterations in original)), overruled on other 15 grounds by Sandin v. Connor, 515 U.S. 472 (1995). However, where a plaintiff proceeding in 16 forma pauperis fails to provide the Marshal with accurate and sufficient information to effect 17 service of the summons and complaint, dismissal of the unserved defendant is appropriate. 18 Walker, 14 F.3d at 1421-22. 19 This case has been pending since June 2020. As described above, despite discovery being 20 opened on the issue of the identity of John Doe and Plaintiff being given more than four months 21 to file a motion to substitute, Plaintiff failed to identify John Doe. Thus, Plaintiff has failed to 22 provide the Marshal with accurate and sufficient information to effect service of the summons 23 and complaint on John Doe, and has failed to serve John Doe within the time period required by 24 Federal Rule of Civil Procedure 4(m). 25 Accordingly, the Court will recommend that Defendant John Doe be dismissed from the 26 action without prejudice.
27 1 Defendants Lopez, Wade, and White have moved for summary judgment on the ground that Plaintiff failed to properly exhaust his administrative remedies regarding his Eighth Amendment claim and the Court has entered 28 findings and recommendations that the motion be granted. (ECF Nos. 47, 53.) 1 B. Failure to Prosecute and Comply with a Court Order 2 Failure to prosecute and failure to comply with a court order may be grounds for 3 dismissal. “In determining whether to dismiss a[n] [action] for failure to prosecute or failure to 4 comply with a court order, the Court must weigh the following factors: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 5 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 6 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 7 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 8 “‘The public’s interest in expeditious resolution of litigation always favors dismissal.’” Id. 9 (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, this 10 factor weighs in favor of dismissal of John Doe. 11 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 12 determine whether the delay in a particular case interferes with docket management and the 13 public interest…. It is incumbent upon the Court to manage its docket without being subject to 14 routine noncompliance of litigants....” Pagtalunan, 291 at 639. Plaintiff has failed to respond to 15 the Court’s order to show cause. A failure to respond to the Court’s orders delays the case and 16 interferes with docket management. Therefore, the second factor weighs in favor of dismissal. 17 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 18 and of itself to warrant dismissal.” Id. at 642 (citing Yourish, 191 F.3d at 991). However, “delay 19 inherently increases the risk that witnesses’ memories will fade and evidence will become stale,” 20 id. at 643, and it is Plaintiff’s failure to comply with a court order and to prosecute this case as to 21 John Doe that is causing delay. Therefore, the third factor weighs in favor of dismissal. 22 As for the availability of lesser sanctions, at this stage in the proceedings there is little 23 available to the Court which would constitute a satisfactory lesser sanction while protecting the Court from further unnecessary expenditure of its scarce resources. Considering Plaintiff’s in 24 forma pauperis status, monetary sanctions are of little use. And, in light of the status of the case 25 and Plaintiff’s failure to identify John Doe for service, the preclusion of evidence or witnesses is 26 not available. 27 The Court will recommend dismissal of John Doe without prejudice. Because the 28 1 | dismissal being considered in this case is without prejudice, the Court is stopping short of using 2 | the harshest possible sanction of dismissal with prejudice. 3 Finally, because public policy favors disposition on the merits, this factor weighs against 4 | dismissing John Doe. Jd. 5 After weighing the factors, the Court finds that dismissing Defendant John Doe without 6 prejudice is appropriate. 8 Based on the foregoing, the Court HEREBY RECOMMENDS that Defendant John Doe
9 be dismissed from this action without prejudice due to failure to prosecute, failure to comply with a court order, and failure to provide the Marshal with accurate and sufficient information to effect service of the summons and complaint on John Doe within the time period prescribed by Federal Rule of Civil Procedure 4(m). 2 These findings and recommendations are submitted to the United States district judge 13 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(). Within twenty-one (21) days after being served with these findings and recommendations, any party may file written 15 objections with the court. Such a document should be captioned “Objections to Magistrate Judge's 16 Findings and Recommendations.” Any reply to the objections shall be served and filed within 17 | fourteen (14) days after service of the objections. The parties are advised that failure to file 18 | objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 19 | Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 20 | (9th Cir. 1991)). > IT IS SO ORDERED.
22 | Dated: _ February 8, 2022 [see ey 3 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28