United States District Court, D. Arizona
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.
ยง 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
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