United States District Court, E.D. California
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.
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.
Service of Process
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
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.)
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.)
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.
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).
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.
light of the foregoing, the undersigned recommends that
Defendant Amrhein be dismissed, without prejudice, based on