# (PC) Dillingham v. Emerson

> District Court, E.D. California · November 22, 2022

URL: https://www.frixlaw.com/law-library/cases/10048721

## Case

- **Court:** District Court, E.D. California
- **Decided:** November 22, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10048721

## How later opinions describe it (automated extraction)

- finding prisoner failed to plead any 12 exacerbating conditions which rendered him unable to provide for his own safety

## Opinion text

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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10 JERRY DILLINGHAM, Case No. 1:18-cv-00507-AWI-SAB (PC)

11 Plaintiff, FINDINGS AND RECOMMENDATIONS
REGARDING DEFENDANTS’ MOTION
12 v. FOR SUMMARY JUDGMENT AND
DISMISSAL OF DOE DEFENDANT
13 N. EMERSON, et al.,
(ECF No. 128)
14 Defendants.

15
16 Plaintiff Jerry Dillingham is proceeding pro se and in forma pauperis in this civil rights
17 action filed pursuant to 42 U.S.C. § 1983.
18 Currently before the Court is Defendants’ motion for summary judgment, filed June 28,
19 2022.
20 I.
21 RELEVANT BACKGROUND
22 This action is proceeding on Plaintiff’s second amended complaint against Defendants
23 Emerson, Wilson, Wescoat, Velasco, Loftin, Martinez, Marsh and Doe 1 for conditions of
24 confinement in violation of the Eighth Amendment, and against Defendant Wescoat for
25 retaliation in violation of the First Amendment. (ECF No. 50.)
26 On March 24, 2020, Defendants filed an answer to the complaint on March 24, 2020.
27 (ECF No. 68.)
///
1 After an unsuccessful settlement conference, the Court issued the discovery and
2 scheduling order on August 26, 2020. (ECF No. 87.)
3 As previously stated, on June 28, 2022, Defendants filed the instant motion for summary
4 judgment. (ECF No. 128.) Despite receiving extensions of time of time to file an opposition, no
5 opposition was filed and the deadline to do has passed. (ECF No. 137.) Accordingly,
6 Defendants’ motion for summary judgment is deemed submitted for review. Local Rule 230(l).
7 II.
8 LEGAL STANDARD
9 A. Summary Judgment Standard
10 Any party may move for summary judgment, and the Court shall grant summary
11 judgment if the movant shows that there is no genuine dispute as to any material fact and the
12 movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks
13 omitted); Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s
14 position, whether it be that a fact is disputed or undisputed, must be supported by (1) citing to
15 particular parts of materials in the record, including but not limited to depositions, documents,
16 declarations, or discovery; or (2) showing that the materials cited do not establish the presence or
17 absence of a genuine dispute or that the opposing party cannot produce admissible evidence to
18 support the fact. Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The Court may consider
19 other materials in the record not cited to by the parties, but it is not required to do so. Fed. R.
20 Civ. P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir.
21 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).
22 In judging the evidence at the summary judgment stage, the Court does not make
23 credibility determinations or weigh conflicting evidence, Soremekun v. Thrifty Payless, Inc., 509
24 F.3d 978, 984 (9th Cir. 2007) (quotation marks and citation omitted), and it must draw all
25 inferences in the light most favorable to the nonmoving party and determine whether a genuine
26 issue of material fact precludes entry of judgment, Comite de Jornaleros de Redondo Beach v.
27 City of Redondo Beach, 657 F.3d at 942 (quotation marks and citation omitted).
1 III.
2 DISCUSSION
3 A. Summary of Plaintiff’s Complaint
4 The incidents alleged in the complaint occurred while Plaintiff was housed at California
5 Substance Abuse Treatment Facility and State Prison, Corcoran.
6 It rained during the evening of January 25, 2016 to the morning of January 26, 2016.
7 Plaintiff woke the morning of January 26, 2016 to a large puddle in his cell nearly causing him to
8 lose his footing. Plaintiff heard other prisoners complaining to Defendants Emerson, Wilson,
9 Wescoat, and Martinez that their cells were flooded. Plaintiff alleges that Defendants Emerson,
10 Wilson, Wescoat, Martinez, Velasco, and Loftin were aware of the flooding because from
11 January 21, 2016 through May 5, 2016 they had to wade through the puddles in the building
12 when they made their rounds. Defendants Emerson, Wilson, Wescoat, and Martinez would have
13 the inmate porters come and mop up the water that had flooded into the cells. Plaintiff states that
14 on examination, he could see that there were holes in the roof that allowed the rain to come into
15 the building. The water dripped down and flooded the light fixtures with water and onto the
16 floor. Plaintiff contends that the cell walls had mold on them demonstrating that the issue had
17 existed for years. Plaintiff alleges that he suffered respiratory issues due to the mold.
18 Plaintiff contends that from January 21, 2016, through May 5, 2016, on days that it
19 rained, he complained to Defendants Emerson, Wilson, Wescoat, Martinez and Velasco during
20 security inspection about the hazardous conditions. The defendants would stand in a puddle of
21 water in front of his cell door and did not relocate Plaintiff to a dry available cell.
22 During the first two weeks of February 2016, Plaintiff asked Defendant Velasco to move
23 him to a dry cell. Defendant Velasco noticed the condition of Plaintiff’s cell and told Plaintiff
24 that he would not move him because since he had worked in the building he had noticed that
25 many of the other cells are in the same condition.
26 Around March 6 or 7, 2016, Plaintiff woke up during the night and slipped on the wet
27 floor causing him injury. Plaintiff asked Defendant Martinez to move him to a dry cell.
1 years. Defendant Martinez told Plaintiff that his cell should be “red flagged” but that he was not
2 able to do it because he was not a “regular.” Defendant Martinez told Plaintiff that he could not
3 move him to a dry cell.
4 On March 8, 2016, Defendant Marsh told Plaintiff that the administration has been aware
5 of that Plaintiff’s cell has water leaking into it from the cracks in the roof for over two years.
6 Plaintiff submitted a health care request and, on March 9, 2016, he was seen by Nurse
7 McCoy who provided Plaintiff with medication for his lower back and hip pain and headache.
8 Plaintiff was referred for follow-up treatment.
9 On May 5, 2016, Plaintiff complained to Defendant Velasco that it had rained overnight
10 and his cell was again flooded. Plaintiff asked to be housed in a dry cell. Plaintiff gave him a
11 completed inmate request for services. Later than day, Plaintiff saw Defendant Velasco in the
12 office with a sergeant (Doe 1) passing the form back and forth and discussing it. Defendant
13 Velasco came to Plaintiff’s cell and told him that they had discussed his form and he would not
14 be moved to cell 225. Defendant Velasco told Plaintiff that he would not sign the form because
15 it would cause him to be liable. Defendant Velasco handed Plaintiff back the form. Plaintiff
16 asked Defendant Velasco for the supervisor’s name, but Defendant Velasco just turned and
17 walked away.
18 On May 6, 2016, Defendant Emerson and Wescoat arrived about 6:30 and Defendant
19 Wescoat lost his footing while wading through the puddles of water. Plaintiff asked to be moved
20 out of his cell into cell 225 which was vacant. Defendant Wescoat refused to move Plaintiff to
21 cell 225 stating that they knew about his complaining in inmate appeals and that neither he nor
22 Emerson would “red flag” Plaintiff’s cell. Plaintiff had filed an inmate grievance against
23 Defendant Emerson and Wilson on January 21, 2016. Defendant Wescoat walked away.
24 Plaintiff slipped on the wet floor injuring his right hip and his lower back.
25 Plaintiff sought medical care and from May 12, 2016, through October 13, 2016, Nurse
26 McCoy and Dr. Brown provided him with medical care. Plaintiff had a consultation with an
27 orthopedist regarding his right hip pain around January 3, 2018. The specialist diagnosed bone
1 B. Statement of Undisputed Facts1
2 1. Plaintiff Jerry Dillingham was an inmate incarcerated by the California
3 Department of Corrections and Rehabilitation (CDCR) and was housed at the Substance Abuse
4 Treatment Facility and State Prison, Corcoran (SATF) during the time period relevant to his
5 allegations in this case. (Sec. Am. Comp. (SAC) at 2, 4-7; Declaration of B. Hancock (Hancock
6 Decl.) Ex A.)
7 2. Plaintiff was housed in Facility D, Building 4, Cell 237, lower bunk, from January
8 21, 2016, to May 6, 2016. (Hancock Decl. Ex. A; Pl. Dep. at 46:17-21, 48:8-15.)
9 3. The layout and positioning of the furniture, outlets, and the light fixture on the
10 ceiling in cell 237 has not changed since Plaintiff was reassigned to a different cell on May 6,
11 2016. (Declaration of J. Barba (Barba Decl.) ¶¶ 3-4 & Ex. A.)
12 4. During the time he was assigned to cell 237, Plaintiff did not have any physical
13 disabilities and there were no disabilities, accommodations, or limitations noted in his file.
14 (Hancock Decl. Exs. B & C; Pl. Dep. at 32:22-33:1.)
15 5. Plaintiff claims that while he was living in cell 237, rainwater would enter the cell
16 and accumulate on the floor every time it rained outside. (Pl. Dep. at 63:14-24.)
17 6. Plaintiff claims he told Defendants about the water in his cell and asked to be
18 moved to a different cell, but Defendants refused. (Pl. Dep. at 79:24-80:16; 89:9-17, 90:2-8,
19 90:20-91:5, 91:24-92:4, 94:23-95:8, 99:12-18.)
20 7. Plaintiff claims that he slipped and fell on the morning of March 6 or 7, 2016, but
21 did not request emergency medical attention at the time of the fall, instead submitting a request
22 for health services form to medical staff. (Pl. Dep. at 77:20-78:15, 79:8-17.)
23 8. Plaintiff claims that he slipped and fell again on May 6, 2016. (Pl. Dep. at 79:24-
24 81:1, 106:19-22.)
25 9. Plaintiff was moved to cell 115 on May 6, 2016. (Hancock Decl. Ex. A; Pl. Dep.
26 at 89:25-1.)
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1 10. Plaintiff claims that he saw rain water pooling in the ceiling light fixture near
2 wires and saw sparks on a couple of occasions, but does not remember where he saw the sparks
3 or who he told about seeing the sparks, and cannot testify that the lights ever stopped working.
4 (Pl. Dep. at 73:22-75:6, 75:16-20, 76:20-77:17, 86:17-20, 87:7-11.)
5 11. The light fixture had a plastic cover, Plaintiff could not reach the ceiling or the
6 light fixture while standing on the floor of his cell, and Plaintiff never touched the light fixture.
7 (Pl. Dep. at 67:10-15, 69:24-70:22, 75:13-15.)
8 12. Plaintiff was not physically injured in any way because of the purported water in
9 his light fixture. (Pl. Dep. at 86:14-16.)
10 13. Plaintiff sued Defendant Loftin because he was told Loftin was the first watch
11 sergeant, but Loftin never spoke to Plaintiff and never came to Plaintiff’s cell. (Pl. Dep. at 97:9-
12 99:17.)
13 14. As Captain of Facility D at SATF, Defendant Marsh was not responsible for day-
14 to-day operation of Plaintiff’s housing unit, but instead delegated authority to housing unit staff
15 to address specific housing issues and cell reassignments. (Declaration of S Marsh (Marsh
16 Decl.) ¶¶ 3-4; Pl. Dep. at 100:19-101:13.)
17 15. Plaintiff claims that Marsh or Marsh’s secretary was supposed to receive
18 documents from floor staff regarding conditions in cells, but Marsh never received any such
19 documents. (Marsh Decl. ¶¶ 4-5; Pl. Dep. at 100:19-101:13.)
20 C. Analysis of Defendants’ Motion
21 Defendants argue that the undisputed evidence does not establish an objectively sufficient
22 serious deprivation and it was not clearly established that rainwater on the floor of a cell was an
23 unconstitutional condition of confinement. Defendants Marsh and Loftin also argue that they
24 had no personal involvement with respect to Plaintiff’s claims.
25 To prove a violation of the Eighth Amendment the plaintiff must “objectively show that
26 he was deprived of something ‘sufficiently serious,’ and make a subjective showing that the
27 deprivation occurred with deliberate indifference to the inmate’s health or safety.” Thomas v.
1 a showing that “prison officials were aware of a “substantial risk of serious harm” to an inmate’s
2 health or safety, and that there was no “reasonable justification for the deprivation, in spite of
3 that risk.” Thomas, 611 F.3d at 1150 (quoting Farmer v. Brennan, 511 U.S. 825, 837, 844
4 (1994)). Officials may be aware of the risk because it is obvious. Thomas, 611 F.3d at 1152. An
5 inmate is challenging the conditions of confinement must show there was a deprivation
6 “sufficiently serious” to form the basis of a violation, and “the prison official acted “with a
7 sufficiently culpable state of mind.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2006)
8 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). The circumstances, nature, and duration of
9 the deprivations are critical in determining whether the conditions complained of are grave
10 enough to form the basis of a viable Eighth Amendment claim.” Johnson, 217 F.3d at 731.
11 1. Objectively Serious Deprivation
12 Objectively, extreme deprivations are required to make out a conditions-of-confinement
13 claim and only those deprivations denying the minimal civilized measure of life's necessities are
14 sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian,
15 503 U.S. 1, 9 (1992). Although the Constitution “ ‘does not mandate comfortable prisons,’”
16 Wilson v. Seiter, 501 U.S. 294, 298 (1991), “inmates are entitled to reasonably adequate
17 sanitation, personal hygiene, and laundry privileges, particularly over a lengthy course of
18 time,” Howard v. Adkison, 887 F.2d 134, 137 (8th Cir. 1989).
19 Under the Eighth Amendment, “slippery prison floors ... do not state even an arguable
20 claim for cruel and unusual punishment.” LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir.
21 1993) (quotation omitted); Jackson v. Arizona, 885 F.2d 639, 641 (9th Cir. 1989). Indeed,
22 federal courts have repeatedly rejected Eighth Amendment slip and fall claims. See Oubichon v.
23 Carey, No. 2:06-cv-2749-JAM-EFB P, 2017 WL 2162940, at *8 (E.D. Cal. May 17,
24 2017) (citing Coleman v. Sweetin, 745 F.3d 756, 764 & n.7 (5th Cir. 2014) (collecting
25 cases); see also Collier v. Garcia, No. 17-cv-05841 LHK (PR), 2018 WL 659014, at *2 (N.D.
26 Cal. Jan. 31, 2018) (dismissing § 1983 claim alleging prisoner slipped and fell in his cell in a
27 puddle of water from a leaking chase); Aaronian v. Fresno Cty. Jail, No. 1:10-cv-00518- JLT
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caused puddle, resulting in plaintiff's slip and fall, as not cognizable); Gilman v. Woodford, No.
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CIV S-05-0337 FCD GGH P, 2006 WL 1049739 (E.D. Cal. April 20, 2006) (granting qualified
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immunity to defendants when prisoner slipped and fell in puddle of water resulting from leaky
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roof known to defendants), aff'd by 2008 WL 686740 (9th Cir. March 12, 2008) (unpublished
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memorandum disposition). Therefore, in order to state a cognizable claim for relief, there must
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be a confluence of exacerbating conditions such that the slippery floor posed a serious,
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unavoidable threat to plaintiff's safety. See Frost v. Agnos, 152 F.3d 1124, 1129 (9th Cir.
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1998) (“[s]lippery floors without protective measures could create a sufficient danger to warrant
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relief” when an inmate alleges facts that exacerbate the danger resulting from such conditions;
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inmate using crutches had repeatedly fallen and injured himself on slippery shower
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floors); Osolinski v. Kane, 92 F.3d 934, 938 (9th Cir. 1996) (finding prisoner failed to plead any
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exacerbating conditions which rendered him unable to provide for his own safety).
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Here, it is undisputed that Plaintiff claims on the days it rained, rain water would leak
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into the cell and accumulate on the floor, causing the floor to be slipper. (UF 5; Sec. Am. Compl.
15
at 8-9, ECF No. 43.) Plaintiff claims he fell on the slipper floor on March 6 or 7, 2016, but he
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acknowledges that he did not alert any Defendant at the time of the fall, nor did he seek
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immediate medical care. (UF 7.) Instead, Plaintiff submitted a written request for medical care
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to medical staff. (Id.) Plaintiff further contends that he fell again on May 6, 2016, the day he
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was moved to cell 115. (UF 8-9.)
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Plaintiff has not pled any conditions that rendered him unable to provide for his own
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safety in the sense that they precluded him from avoiding the puddle or rendered him unable to
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perceive the slippery conditions. Osolinski, 92 F.3d at 938; Mancinas v. Brown, No. 2:16-cv-
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2806-EFB P, 2018 WL 1109673, at *2 (E.D. Cal. Mar. 1, 2018) (dismissing prisoner’s
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§ 1983 claim that known, ongoing leak caused puddle, resulting in slip and fall). There is no
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evidence that Plaintiff possessed, or that Defendants knew of some exacerbating condition
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contributing to the flooded cell such that Plaintiff was unable to observe the water or was
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otherwise unable to provide for his own safety. Indeed, Plaintiff’s disability and
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accommodations summary shows that he had no restrictions, accommodations, or medical
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equipment issued to him before April 5, 2017. (UF 4; Hancock Decl. Ex. B.) Moreover,
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Plaintiff’s medical classification chrono from before he was housed in cell 237 indicates that he
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required only an outpatient level of care, had no particular need for a proximity to consult, had
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full duty functional capacity, was only a medium medical risk, and needed only basic nursing.
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(UF 4; Hancock Decl. Ex. C.) Furthermore, Plaintiff has acknowledged that he was active in
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sports and had no physical impairments when he was assigned to cell 237. (Sec. Am. Compl. at
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19.) Although Plaintiff claims that he told Defendants about water accumulating on his cell floor
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and they failed to remedy the condition, such allegations do not rise to the level of an Eighth
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Amendment claim for deliberate indifference. The circumstances alleged by Plaintiff do not
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shock the conscience, nor are they repugnant to civilized standards of maturing society. Without
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something more than a slippery floor or a flooded cell, Defendants could not have known about
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an objectively serious condition creating a substantial risk of serious harm. Because Ninth
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Circuit precedent requires something more than a slippery wet floor, and Plaintiff does not
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present anything more, Defendants’ motion for summary judgment should be granted.2
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D. Dismissal of Doe Defendant Pursuant to Federal Rule of Civil Procedure 4
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Plaintiff’s claim against Defendant Doe 1 remains. Although “the use of ‘John Doe’ to
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identify a defendant is not favored,” Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980),
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“where the identity of the alleged defendant is not known prior to the filing of a complaint, the
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plaintiff should be given the opportunity through discovery to identify the unknown defendants,
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unless it is clear that discovery would not uncover the identities, or that the complaint would
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be dismissed on other grounds,” Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999).
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Here, the Court accorded Plaintiff this opportunity in its June 2019 service order,
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explaining that Defendant Doe could not be served before being identified and noting that
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Plaintiff could amend his complaint if the Defendant’s identity were ascertained during
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discovery. (ECF No. 50 at n.1.) The August 2020 initial scheduling order provided that the
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2 Inasmuch as the Court recommends that Defendants’ motion for summary judgment be granted on the merits of
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parties could conduct discovery until April 26, 2021. (ECF No. 87.) The discovery deadline was
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later extended to January 28, 2022. (ECF No. 116.) Plaintiff has not moved to amend his
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complaint, moved to substitute Defendant Doe, or otherwise notified the Court of the identity
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of Defendant Doe.
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Pursuant to Rule 4 of the Federal Rules of Civil Procedure, “[i]f a defendant is not served
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within 90 days after the complaint is filed, the court—on motion or on its own after notice to the
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plaintiff—must dismiss the action without prejudice against that defendant or order that service
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be made within a specified time. But if the plaintiff shows good cause for the failure, the court
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must extend the time for service for an appropriate period.” Fed. R. Civ. P. 4(m). This 90-day
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deadline under Rule 4(m) applies to service on unnamed defendants. See Bulgara v. Cty. of
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Stanislaus, No. 1:18-cv-00804-DAD-SAB, 2020 WL 5366306, at *5 (E.D. Cal. Sept. 8, 2020),
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report and recommendation adopted, No. 1:18-cv-00804-DAD-SAB (PS), 2021 WL 1105255
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(E.D. Cal. Mar. 23, 2021) (dismissing action against “Doe defendants” for failure to serve
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within Rule 4(m)’s 90-day deadline). In this case, well over 90 days have elapsed since the filing
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of Plaintiff's second amended complaint on January 11, 2019. (ECF No. 43.) Plaintiff has
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therefore failed to serve the Defendant Doe in compliance with Rule 4(m).
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In addition to Rule 4(m)’s requirements, “a court may dismiss a defendant, a claim[,] or
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an action based on a party's failure to prosecute an action[,] failure to obey a court order, or
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failure to comply with local rules.” Bulgara, 2020 WL 5366306, at *5 (citing Ferdik v. Bonzelet,
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963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring
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amendment of complaint), Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir.
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1986) (dismissal for failure to prosecute and to comply with local rules)). Plaintiff received
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advisement that he was required to amend his complaint to identify the Doe Defendant so that
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the complaint could be served. (ECF No. 50.) Discovery has closed and the deadline to amend
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the pleadings has passed without Plaintiff filing anything to indicate that he has
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identified Defendant Doe.
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! Where Plaintiff has failed to effect service in accordance with Rule 4(m) and has failed to
comply with the orders instructing him to identify the defendant before the close of
° discovery, dismissal of a Doe defendant is warranted. See Williby v. California, 276 F. App'x
‘ 663, 665 (9th Cir. 2008) (holding district court's sua sponte dismissal of Doe defendants was
° merited where plaintiff had failed to identify defendants within allotted discovery
6 period); Bulgara, 2020 WL 5366306, at *5 (recommending dismissal of Doe defendants, without
additional notice, for failure to effect service under Rule 4(m) where defendants were not
identified within the allotted discovery period). Accordingly, Defendant Doe should be
dismissed from this action.
10 IV.
RECOMMENDATIONS
2 Based on the foregoing, it is HEREBY RECOMMENDED that:
1. Defendants’ motion for summary judgment be granted; and
i 2. Defendant Doe | be dismissed from the action pursuant to Rule 4(m).
These Findings and Recommendations will be submitted to the United States District
Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within twenty-
M one (21) days after being served with these Findings and Recommendations, the parties may file
written objections with the Court. The document should be captioned “Objections to Magistrate
Judge’s Findings and Recommendations.” The parties are advised that failure to file objections
*0 within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler,
772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir.
1991)).
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24 | IT IS SO ORDERED.
Al (re
> | Dated: _ November 22, 2022 OF
26 UNITED STATES MAGISTRATE JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10048721. Public record. Not legal advice.