1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANTONIO MARTINEZ, Case No. 1:16-cv-01467-DAD-BAM (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATION TO

DISMISS DEFENDANT OFFICER DOE # 3

13 v. FOR FAILURE TO SERVE WITH PROCESS 14 F. ROJAS, et al. (ECF No. 51) 15 Defendants. FOURTEEN (14) DAY DEADLINE 16 17 I. Introduction 18 Plaintiff Antonio Martinez is a state prisoner proceeding pro se and in forma pauperis in 19 this civil rights action pursuant to 42 U.S.C. § 1983. This action currently proceeds against 20 Registered Nurse F. Rojas and Officer Doe # 3 for deliberate indifference in violation of the 21 Eighth Amendment. (ECF No. 24.) Officer Doe # 3 is described in Plaintiff’s second amended 22 complaint as a receiving and release officer employed at Pleasant Valley State Prison on May 16, 23 2016. (ECF No. 22, at 3, 9.) 24 On October 24, 2018, the Court issued an order advising Plaintiff on his duty to identify 25 Officer Doe #3 for service of process, with information and the applicable rules as guidance. 26 (ECF No. 29.) In addition, the Court ordered Plaintiff to provide, within forty-five (45) days, a 27 motion for leave to amend his pleading to substitute the identify of Officer Doe #3, or a request to 28 obtain the information necessary to identify Officer Doe #3. (Id. at 3-4.) That deadline passed, 1 and Plaintiff did not comply with the Court’s order or otherwise communicate with the Court. 2 On December 27, 2018, the Court issued an order directing Plaintiff to, within fourteen 3 (14) days from the date of service of the order, either file a motion for leave to amend his 4 pleading to substitute the identify of Officer Doe # 3, file a request to obtain the information 5 necessary to identify Officer Doe # 3, or show cause in writing why Officer Doe # 3 should not 6 be dismissed from the action. (ECF No. 32.) After Plaintiff failed to comply with the Court’s 7 order, on January 23, 2019, the Court issued findings and recommendations recommending that 8 Officer Doe # 3 be dismissed, without prejudice, for the failure to serve with process pursuant to 9 Federal Rule of Civil Procedure 4(m). (ECF No. 33.) On February 19, 2019, Plaintiff filed 10 objections to the January 23, 2019 findings and recommendations and a motion for leave to file 11 late objections for good cause. (Doc. Nos. 37, 38.) 12 On July 2, 2019, the Court issued an order denying as moot Plaintiff’s leave to file late 13 objections, vacating the January 23, 2019 findings and recommendations, and denying, without 14 prejudice, Plaintiff’s request for a Federal Rule of Civil Procedure 45 subpoena. (ECF No. 51.) 15 The Court ordered Plaintiff to file, within forty-five days from the date of service of the order, 16 either a motion for leave to amend his second amended complaint to substitute the identity of 17 Officer Doe # 3 or a renewed motion for a Rule 45 subpoena to obtain the information necessary 18 to identify Officer Doe # 3. (Id. at 8.) Finally, Plaintiff was expressly warned that his failure to 19 comply with the Court’s order would result in a recommendation to the District Judge to dismiss 20 Officer Doe # 3 from this action. (Id.) 21 More than forty-five days have passed since the Court’s July 2, 2019 order was served, 22 and Plaintiff has not complied with the Court’s order or otherwise communicated with the Court. 23 II. Discussion 24 Pursuant to Federal Rule of Civil Procedure 4(m):

25 If a defendant is not served within 90 days after the complaint is filed, the court— 26 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 27 time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. 28 1 Fed. R. Civ. P. 4(m). In cases involving a plaintiff proceeding in forma pauperis, a United States 2 Marshal, upon order of the court, shall serve the summons and the complaint. Fed. R. Civ. P. 3 4(c)(3). “[A] prisoner ‘is entitled to rely on the U.S. Marshal for service’ . . . as long as he or she 4 ‘provide[s] the necessary information to help effectuate service’ a prisoner ‘should not be 5 penalized by having his or her action dismissed … where the U.S. Marshal … has failed to 6 perform the duties required of … them[.]” Schrubb v. Lopez, 617 F. App’x 832, 832 (9th Cir. 7 2015) (quoting Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990), abrogated on other grounds 8 by Sandin v. Connor, 515 U.S. 472 (1995)). However, where a pro se plaintiff fails to provide 9 the Marshal with accurate and sufficient information to effect service of the summons and 10 complaint, the Court’s sua sponte dismissal of the unserved defendants is appropriate. Walker v. 11 Summer, 14 F.3d 1415, 1421–22 (9th Cir. 1994), overruled on other grounds by Sandin, 515 U.S. 12 at 483-84. 13 Although a claim against a Doe defendant may be sufficient to survive screening, the Doe 14 defendant must be identified and served with a summons and complaint in order for an action to 15 proceed against that party. This cannot be done without Plaintiff’s cooperation. Here, Plaintiff 16 has been granted multiple opportunities to provide sufficient information to identify Defendant 17 Officer Doe # 3, so that the United States Marshal may serve the summons and complaint on 18 them. However, Plaintiff has failed to identify Defendant Officer Doe # 3 or file a motion for a 19 Rule 45 subpoena so that he can obtain the information necessary to identify Officer Doe # 3, 20 despite repeated warnings that failure to do so would result in the dismissal of Officer Doe # 3. 21 In addition, Plaintiff has failed to set forth any explanation demonstrating good cause for his 22 failure to identify Defendant Officer Doe # 3. 23 III. Recommendation 24 Accordingly, the Court HEREBY RECOMMENDS that Defendant Officer Doe # 3 be 25 dismissed for the failure to serve with process, without prejudice, pursuant to Federal Rule of 26 Civil Procedure 4(m). 27 These findings and recommendation will be submitted to the United States District Judge 28 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 1 (14) days after being served with these findings and recommendation, Plaintiff may file written 2 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 3 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 4 specified time may result in the waiver of the “right to challenge the magistrate’s factual 5 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 6 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 7

IT IS SO ORDERED.

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9 Dated: September 13, 2019 /s/ Barbara A. McAuliffe _

UNITED STATES MAGISTRATE JUDGE

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