Opinion
CASE NO. CV-F-04-5215 REC DLB P.
September 15, 2006
FINDINGS AND RECOMMENDATION RE DISMISSAL OF DECEASED DEFENDANT
Plaintiff David Brown ("plaintiff") is a state prisoner proceeding pro se and in forma pauperis in a civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on plaintiff's complaint, filed on February 2, 2004. On January 6, 2006, the court directed the United States Marshal to initiate service on defendants. On January 16, 2006, the Marshal returned the summons and USM-285 forms as to defendant Dr. Klarich who is deceased. On March 31, 2006, the Court ordered plaintiff to show cause why Dr. Klarich should not be dismissed as Plaintiff had not moved to substitute Dr. Klarich's estate as a party, nor provided the name and address of the representative for service on the estate. On April 14, 2006, plaintiff moved to substitute Dr. Klarich's estate, however, he failed to provide any information regarding the estate or the executor. The Court therefore denied the motion, without prejudice to renewal, on May 2, 2006. Plaintiff has not renewed the motion.
Pursuant to Rule 4(m),
[i]f service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.
In cases involving a plaintiff proceeding in forma pauperis, a United States Marshal, upon order of the court, shall serve the summons and the complaint. Fed.R.Civ.P. 4(c)(2). "'[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the summons and complaint and . . . should not be penalized by having his action dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to perform his duties.'"Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quotingPuett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990)), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). "So long as the prisoner has furnished the information necessary to identify the defendant, the marshal's failure to effect service is 'automatically good cause. . . .'" Walker, 14 F.3d at 1422 (quoting Sellers v. United States, 902 F.2d 598, 603 (7th Cir. 1990)). However, where a pro se plaintiff fails to provide the Marshal with accurate and sufficient information to effect service of the summons and complaint, the court's sua sponte dismissal of the unserved defendants is appropriate. Walker, 14 F.3d at 1421-22.
In this instance, plaintiff was informed that Dr. Klarich was deceased but plaintiff has failed to move to substitute the estate as a defendant nor has plaintiff provided the identity or address of the representative for service on the estate.
Accordingly, the Court HEREBY RECOMMENDS that Dr. Klarich be dismissed from this action on the ground that the Marshal was unable to serve him based on the information provided by plaintiff.
These findings and recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) 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 within the specified time may waive the right to appeal the District Court's order.Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.