United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THE
FOUR UNKNOWN CORRECTIONAL OFFICERS BE DISMISSED FROM THIS
ACTION, WITHOUT PREJUDICE, PURSUANT TO FEDERAL RULE OF CIVIL
PROCEDURE 4(M) (ECF NO. 90) FOURTEEN-DAY DEADLINE
I.
PROCEDURAL HISTORY
Paul
Jorgenson (“Plaintiff”) is a federal prisoner
proceeding pro se and in forma pauperis in
this action. This case now proceeds on Plaintiff's Second
Amended Complaint (“SAC”), which was filed on
July 12, 2018. (ECF No. 19). This case is proceeding on
Plaintiff's FTCA claim against the United States, his
Eighth Amendment Bivens claim against the four unknown
correctional officers (“the Doe Defendants”), his
state tort claims for medical negligence against Defendants
Haak, Randhawa, and Emanuel Medical Center, and his state
tort claims for battery against Defendants Haak and Emanuel
Medical Center. (ECF No. 21, p. 2; ECF No. 95, p. 3).
On
March 27, 2019, the Court opened discovery on the issue of
the identity of the Doe Defendants. (ECF No. 70, pgs. 1-2).
The Court gave Plaintiff until July 12, 2019, to identify the
Doe Defendants. (Id. at 2). The Court informed
Plaintiff that “[t]o add named defendants in place of
Doe Defendants, Plaintiff may file a motion for leave to
amend the complaint or a motion to substitute.”
(Id.). Plaintiff was warned that “[f]ailure to
file a motion for leave to amend or a motion to substitute by
this deadline may result in dismissal of Doe
Defendants.”
Plaintiff
failed to identify the Doe Defendants by this deadline.
However, in the abundance of caution, on September 10, 2019,
the Court gave Plaintiff an additional thirty days to
identify the Doe Defendants. (ECF No. 90, p. 2). Plaintiff
was warned that “[f]ailure to file a motion to
substitute by this deadline may result in dismissal of Doe
Defendants.” (Id.).
The
extended deadline passed, and Plaintiff has not filed a
motion to substitute or a motion for leave to amend.
Accordingly, the Court will recommend that the Doe Defendants
be dismissed from the action, without prejudice.
II.
LEGAL STANDARDS
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-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).
In
cases involving a plaintiff proceeding in forma
pauperis, the United States Marshal (“the
Marshal”), upon order of the Court, shall serve the
summons and the complaint. Fed.R.Civ.P. 4(c)(3).
“‘[A]n incarcerated pro se plaintiff proceeding
in forma pauperis is entitled to rely on the U.S. Marshal for
service of the summons and complaint and ... should not be
penalized by having his action dismissed for failure to
effect service where the U.S. Marshal or the court clerk has
failed to perform his duties….'” Walker
v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting
Puett v. Blandford, 912 F.2d 270, 275 (9th Cir.
1990) (alterations in original)), overruled 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, 14 F.3d at 1422
(quoting Sellers v. United States, 902 F.2d 598, 603
(7th Cir.1990)). However, where a plaintiff proceeding in
forma pauperis fails to provide the Marshal with
accurate and sufficient information to effect service of the
summons and complaint, dismissal of the unserved defendant is
appropriate. Walker, 14 F.3d at 1421-22
III.
ANALYSIS
As
described above, despite discovery being opened on the issue
of the identity of the Doe Defendants and Plaintiff being
given over four months to file a motion to substitute or a
motion for leave to amend the complaint to identify the Doe
Defendants, Plaintiff failed to identify the Doe Defendants.
Thus, Plaintiff has failed to provide the Marshal with
accurate and sufficient information to effect service of the
summons and complaint on the Doe Defendants, and has failed
to serve the Doe Defendants within the time period required
by Federal Rule of Civil Procedure 4(m).
Accordingly,
the Court will recommend that the Doe Defendants be dismissed
from the action, without prejudice.
IV.
...