Hernandez v. Banner Boswell Medical Center

          HONORABLE G. MURRAY SNOW, UNITED STATES DISTRICT JUDGE.

          REPORT AND RECOMMENDATION

          Honorable Eileen S. Willett, United States Magistrate Judge.

         This is a civil rights action filed pro se by state prisoner Ruben Guzman Hernandez (“Plaintiff”) pursuant to 42 U.S.C. § 1983. For the reasons discussed herein, the undersigned recommends that the Court dismiss Defendants John Doe Nurse 1, John Doe Nurse 2, and John Doe 3 Banner Security without prejudice for failure to timely serve in accordance with Federal Rule of Civil Procedure 4(m). The case has been pending for more than two years, and the Plaintiff has failed to file a motion to amend the Amended Complaint (Doc. 12) to name John Doe Nurse 1, John Doe Nurse 2, and John Doe 3 Banner Security. A John Doe defendant cannot be served.

         I. LEGAL STANDARDS

         Under Federal Rule of Civil Procedure 4(m), “[i]f 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.” However, “if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.” Id.

         As the Ninth Circuit Court of Appeals has explained, “Rule 4(m) requires a two-step analysis in deciding whether or not to extend the prescribed time period for the service of a complaint.” In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001) (citing Fed.R.Civ.P. 4(m) and Petrucelli v. Bohringer & Ratzinger, GMBH, 46 F.3d 1298, 1305 (3d Cir. 1995)). “First, upon a showing of good cause for the defective service, the court must extend the time period. Second, if there is no good cause, the court has the discretion to dismiss without prejudice or to extend the time period.” Id. The Ninth Circuit has found it “unnecessary, however, to articulate a specific test that a court must apply in exercising its discretion under Rule 4(m), ” noting “only that, under the terms of the rule, the court's discretion is broad.” Id. at 513. Yet “no court has ruled that the discretion is limitless. In making extension decisions under Rule 4(m) a district court may consider factors ‘like a statute of limitations bar, prejudice to the defendant, actual notice of a lawsuit, and eventual service.'” Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007) (emphasis added).

         If a pro se prisoner proceeding in forma pauperis has provided to the U.S. Marshals Service (the “USMS”) sufficient information to effectuate service on a defendant, the USMS' failure to effect service is “automatically good cause” to extend the service deadline. Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Sellers v. United States, 902 F.2d 598, 603 (7th Cir. 1990)), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). But where a prisoner fails to provide the USMS with accurate and sufficient information to effect service of the summons and complaint, a court's sua sponte dismissal of the unserved defendant(s) is appropriate. Id.

         II. DISCUSSION

         No motion to amend the Amended Complaint (Doc. 12) to substitute true names for each John Doe Defendant has been filed. Plaintiff has had over two years to ascertain their identities and has failed to do so. No. proof of service has been filed as to John Doe Nurse 1, John Doe Nurse 2, and John Doe 3 Banner Security as of March 28, 2019. On March 8, 2019, the Court issued an Order requiring Plaintiff to show cause why Defendants John Doe Nurse 1, John Doe Nurse 2, and John Doe 3 Banner Security should not be dismissed from this action without prejudice for failure to serve pursuant to Fed.R.Civ.P. 4(m). (Doc. 55). The Court set March 25, 2019 as the deadline for Plaintiff's response. (Id.). As of the date of this Report and Recommendation, Plaintiff has not responded with good cause to continue the service deadlines as to Defendants John Doe Nurse 1, John Doe Nurse 2, and John Doe 3 Banner Security.

         The Court has warned Plaintiff that the failure to timely serve Defendants John Doe Nurse 1, John Doe Nurse 2, and John Doe 3 Banner Security may result in a dismissal. (Doc. 55 at 1, 2). To reiterate, an incarcerated pro se plaintiff is responsible for furnishing the USMS with sufficient information to serve a defendant. See Walker, 14 F.3d at 1422. The undersigned recommends that the Court dismiss Defendants John Doe Nurse 1, John Doe Nurse 2, and John Doe 3 Banner Security from this action without prejudice for failure to timely effect service.

         III. CONCLUSION

         Based on the foregoing, IT IS RECOMMENDED that the Court dismiss without prejudice Defendants John Doe Nurse 1, John Doe Nurse 2, and John Doe 3 Banner Security from this action for failure to timely effect service in accordance with Federal Rule of Civil Procedure 4(m).

         This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the ...