The opinion
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7 UNITED STATES DISTRICT COURT
8 EASTERN DISTRICT OF CALIFORNIA
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10 MICHAEL ANTHONY HOWARD, Case No. 1:18-cv-01710-DAD-EPG (PC)
11 Plaintiff, FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT DEFENDANTS
12 v. LENO AND W. HANNA BE DISMISSED
FROM THIS ACTION, WITHOUT
13 SGT. ENCINAS, et al., PREJUDICE, PURSUANT TO FEDERAL
RULE OF CIVIL PROCEDURE 4(M)
14 Defendants.
(ECF NOS. 17, 18, 19, & 39)
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OBJECTIONS, IF ANY, DUE WITHIN
16 FOURTEEN DAYS
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18 I. BACKGROUND
19 Michael Howard (“Plaintiff”) is a state prisoner proceeding pro se and in forma
20 pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983, which includes state law
21 claims.
22 This case now proceeds “on Plaintiff’s complaint filed November 19, 2018 (ECF No.
23 1), on the following claims: Plaintiff’s claim against defendants J. Flores, J. Alejo, R. Nichols,
24 H. Rodriguez, A. Loza, Leno, and A. Encinas for excessive force in violation of the Eighth
25 Amendment; Plaintiff’s claim against defendant Tumacder for failure to protect in violation of
26 the Eighth Amendment; Plaintiff’s claim for deliberate indifference to serious medical needs in
27 violation of the Eighth Amendment against defendants J. Flores, J. Alejo, R. Nichols, H.
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1 Rodriguez, A. Loza, Leno, A. Encinas, Tumacder, Soto, [W.] Hanna, and Blevins; Plaintiff’s
2 Bane Act claim against defendants J. Flores, J. Alejo, R. Nichols, H. Rodriguez, A. Loza, Leno,
3 and A. Encinas; and Plaintiff’s assault and battery claims against defendants J. Flores, J. Alejo,
4 R. Nichols, H. Rodriguez, A. Loza, Leno, and A. Encinas.” (ECF No. 17, p. 1). All other
5 claims and defendants were dismissed. (ECF No. 31).
6 Neither defendant Leno nor defendant W. Hanna1 has been served. The summons
7 directed to defendant Leno was returned unexecuted. (ECF No. 24). The United States
8 Marshals Service conducted a review of the relevant duty roster, but “[t]here was no CO named
9 Leno or anything close to that working on the day of the incident.” (Id.). The assigned Deputy
10 or Clerk certified that he or she was unable to locate defendant Leno. (Id.).
11 As to defendant W. Hanna, evidence has been submitted that there was no W. Hanna
12 working at the institution when the incident occurred, and that there is still no W. Hanna
13 employed at the institution. (ECF No. 28-1, pgs. 1-2).
14 Accordingly, the Court issued an order to show cause, directing Plaintiff to “show cause
15 why the Court should not issue findings and recommendations to the assigned district judge,
16 recommending that defendants Leno and W. Hanna be dismissed from this action, without
17 prejudice, pursuant to Federal Rule of Civil Procedure 4(m).” (ECF No. 39, p. 3). The
18 deadline for Plaintiff to respond to the order to show cause has passed, and Plaintiff has not
19 responded to the order to show cause or requested the issuance of a third party subpoena.
20 II. LEGAL STANDARDS
21 Pursuant to Federal Rule of Civil Procedure 4(m),
22 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
23 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
24 court must extend the time for service for an appropriate period.
25 Fed. R. Civ. P. 4(m).
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27 1 F. Hanna waived service and filed a motion to dismiss on the ground that he is not named in the Court’s
order of service or in the summons (ECF No. 28), but W. Hanna has not been served.
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1 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of
2 the Court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “‘[A]n
3 incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal
4 for service of the summons and complaint and … should not be penalized by having his action
5 dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to
6 perform his duties….’” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett
7 v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990) (alterations in original)), overruled on other
8 grounds by Sandin v. Connor, 515 U.S. 472 (1995). “So long as the prisoner has furnished the
9 information necessary to identify the defendant, the marshal’s failure to effect service is
10 ‘automatically good cause….’” Walker, 14 F.3d at 1422 (quoting Sellers v. United States, 902
11 F.2d 598, 603 (7th Cir.1990)). However, where a plaintiff proceeding in forma pauperis fails
12 to provide the Marshal with accurate and sufficient information to effect service of the
13 summons and complaint, dismissal of the unserved defendant is appropriate. Walker, 14 F.3d
14 at 1421-22.
15 III. ANALYSIS
16 As discussed above, it appears that there was no “Leno” or “W. Hanna” working at
17 Plaintiff’s institution of confinement on the day of the incident alleged in the complaint. In
18 issuing its order to show cause, the Court gave Plaintiff an opportunity to provide the Marshal
19 with additional information and/or to request the issuance of a third party subpoena so that he
20 could attempt to identify these defendants. (ECF No. 39, p. 3). However, Plaintiff did not
21 respond to the order to show cause, provide the Marshal with additional information, or request
22 the issuance of a third party subpoena.
23 As Plaintiff has failed to provide the Marshal with accurate and sufficient information
24 to effect service of the summons and complaint on defendants Leno and W. Hanna within the
25 time period prescribed by Federal Rule of Civil Procedure 4(m), the Court will recommend that
26 these defendants be dismissed from the action, without prejudice.
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wOow 4.40 UVM EE EU MAR NS MMU IO TAY TM
1 RECOMMENDATION
2 Based on the foregoing, the Court HEREBY RECOMMENDS that defendants Leno
3 W. Hanna be dismissed from this action, without prejudice, because of Plaintiff's failure to
4 || provide the Marshal with accurate and sufficient information to effect service of the summons
5 complaint on defendants Leno and W. Hanna within the time period prescribed by Federal
6 || Rule of Civil Procedure 4(m).
7 These findings and recommendations are submitted to the United States district judge
8 || assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(). Within fourteen
9 || (14) days after being served with these findings and recommendations, any party may file
10 || written objections with the court. Such a document should be captioned “Objections to
11 || Magistrate Judge's Findings and Recommendations.” Any reply to the objections shall be
12 || served and filed within seven (7) days after service of the objections. The parties are advised
13 || that failure to file objections within the specified time may result in the waiver of rights on
14 ||appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan,
15 F.2d 1391, 1394 (9th Cir. 1991)).
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4 IT IS SO ORDERED.
‘2 ll Dated: _ May 13, 2020 □□□ hey
19 UNITED STATES MAGISTRATE JUDGE
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