Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lamon v. Amrheign

United States District Court, E.D. California

November 6, 2017

BARRY LOUIS LAMON, Plaintiff,
v.
B. AMRHEIGN, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF DEFENDANT AMRHEIN, WITHOUT PREJUDICE, FOR THE FAILURE TO EFFECTUATE SERVICE [ECF NO. 99]

          Barbara A. McAuliffe UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Barry Louis Lamon is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

         I. Service of Process

         On October 27, 2016, the Court issued an order directing the United States Marshal to initiate service of process in this action upon Defendant Amrhein, among other defendants. (ECF No. 61.)[1]

         On November 28, 2016, the United States Marshal filed a return of service unexecuted as to Defendant Amrhein. (ECF No. 31). The USM-285 form stated that CDCR reported that they did not have a current or former employee by the name, “Amreign.” (Id. at 1.) In a subsequent series of filings, Plaintiff provided additional information related to service, including that Defendant Amrhein was employed as a supervising registered nurse at Corcoran State Prison from 2008 through 2009, and that the correct spelling of her name is “Barbara Amrhein.” (ECF Nos. 64, 66, 67, 74, 83.)

         On September 12, 2017, the Court issued an order directing the United States Marshal to attempt re-service with the new information outlined above. (ECF No. 86.)

         On October 2, 2017, the United States Marshal filed a return of service unexecuted as to Defendant Amrhein. (ECF No. 99). The USM-285 form states that Defendant Amrhein was identified, and it was confirmed that she left employment with the California Department of Corrections and Rehabilitation (“CDCR”) in 2009. CDCR does not have authority to accept service, but Human Resources provided the Marshal with a last known address. On September 15, 2017, a waiver was mailed to the last known address, but it was returned, and the Marshal confirmed that Defendant Amrhein does not live at the last known address.

         A. Legal Standards

         Federal Rule of Civil Procedure 4(m) provides as follows:

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). 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 defendant is appropriate. Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995).

         B. Discussion

         In this case, Plaintiff has not provided accurate and sufficient information to locate Defendant Amrhein for service of process. Service was attempted through CDCR, Defendant Amrhein's former employer, using the information provided by Plaintiff, but Defendant Amrhein was unable to be served at Corcoran State Prison. Further, the Marshal used the forwarding address information provided by CDCR's Human Resources to attempt service, but was unable to serve Defendant Amrhein at the address provided. All information provided to attempt service of process on Defendant Amrhein has now been exhausted.

         In light of the foregoing, the undersigned recommends that Defendant Amrhein be dismissed, without prejudice, based on ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.