United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL
OF DOE DEFENDANTS AND DISMISSAL OF ACTION (ECF NO.
BARBARA A. McAULIFFE, UNITED STATES MAGISTRATE JUDGE
Darrell Junior Lescallett (“Plaintiff”) is a
state prisoner proceeding pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
This action proceeds on Plaintiff's second amended
complaint for claims of retaliation against Doe Defendants
regarding Plaintiff's identification as a 2-5 gang
affiliate and placement on a modified program. (ECF No. 15.)
29, 2015, the Court issued an order finding service of
Plaintiff's second amended complaint appropriate, and
requiring Plaintiff within one-hundred twenty (120) days to
provide written notice identifying Doe Defendants with enough
information to locate the defendants for service of process.
(ECF No. 15.) Plaintiff failed to provide written notice to
the Court identifying Doe Defendants within the specified
April 5, 2017, the Court issued an order to show cause why
the remaining Doe Defendants should not be dismissed and this
action closed. (ECF No. 48.) Plaintiff filed a response to
the Court's order to show cause on April 24, 2017. (ECF
asserts that he has made every effort to name the Doe
Defendants, but he has been unable to do so because his
property will come up missing, his mail will be lost, or he
is taken to administrative segregation in order to discourage
him from litigating or to cause him to miss deadlines.
Plaintiff states that he has been able to obtain the names of
some of the Doe Defendants employed by the California
Department of Corrections and Rehabilitation and working at
Corcoran State Prison, and that he includes exhibits
demonstrating the barriers he has faced preventing the
identification of the Doe Defendants. Plaintiff requests that
the Court provide the proper forms to serve Doe Defendants,
and facilitate service of process by the United States
Marshal. (ECF No. 49.)
to Federal Rule of Civil Procedure 4(m):
If a defendant is not served within 90 days after the
complaint is filed, the court- 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 specified time. But if the plaintiff shows good
cause for the failure, the court must extend the time for
service for an appropriate period.
Fed. R. Civ. P. 4(m).
cases involving a plaintiff proceeding in forma pauperis, a
United States Marshal, upon order of the court, shall serve
the summons and the complaint. Fed.R.Civ.P. 4(c)(3).
“[A] prisoner ‘is entitled to rely on the U.S.
Marshal for service' . . . as long as he or she
‘provide[s] the necessary information to help
effectuate service.'” Schrubb v. Lopez,
617 Fed.Appx. 832, 832 (9th Cir. 2015) (quoting Puett v.
Blandford, 912 F.2d 270, 275 (9th Cir. 1990),
abrogated on other grounds by Sandin v. Connor, 515
U.S. 472 (1995)). “So long as the prisoner has
furnished the information necessary to identify the
defendant, the marshal's failure to effect service is
‘automatically good cause . . . .'”
Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994)
(quoting Sellers v. United States, 902 F.2d 598, 603
(7th Cir. 1990)), overruled on other grounds by
Sandin, 515 U.S. at 483-84. However, where a pro se
plaintiff fails to provide the Marshal with accurate and
sufficient information to effect service of the summons and
complaint, the Court's sua sponte dismissal of the
unserved defendants is appropriate. Walker, 14 F.3d
A to Plaintiff's response to the Court's order to
show cause is a list entitled “Doe Defendants, ”
including eight (8) individuals: Correctional Officer R.
Meraz, Correctional Officer D. Uribe, Correctional officer R.
L. McMurrey, Lieutenant B. J. Weaver, Lieutenant R. Juarez,
Captain R. Whitfield, Correctional Officer J. Vargas, and
Lieutenant J. Prudhel. (ECF No. 49, pp. 5-6.) Of these
individuals, four-Officer McMurrey, Lieutenant Weaver,
Lieutenant Juarez, and Lieutenant Prudhel-are named
defendants who were dismissed from this action. (ECF Nos. 11,
18.) The remaining four-Officer Meraz, Officer Uribe, Captain
Whitfield, and Officer Vargas-are individuals who were named
and identified in the second amended complaint. (ECF No. 11.)
B is a partial copy of the Court's June 2, 2015 screening
order, (ECF No. 12), with handwritten annotations. (ECF No.
49, pp. 8-18.) Plaintiff has circled the names of defendants
and other individuals named in the complaint. However,
Plaintiff does not provide any explanation detailing the
efforts he has taken to obtain the identities of ...