Opinion
No. 2:16-cv-387-EFB P
05-16-2019
JAMBRI SEAN JOHNSON, Sr., Plaintiff, v. DR. MOHAMED IBRAHIM, et al., Defendants.
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. The United States Marshal has returned process directed to defendants Arnold and Ibrahim. The unexecuted summonses state that according to the litigation coordinator, CDCR does not have an employee by either name. ECF No. 22.
On March 6, 2019, the court informed plaintiff that Rule 4(m) of the Federal Rules of Civil Procedure requires that an action be dismissed as to a defendant not served within 90 days after filing the complaint unless the time is enlarged based upon a demonstration of good cause. ECF No. 23. The court informed plaintiff that if he wished to pursue this action against defendants Arnold and Ibrahim, he must promptly provide new information about how to locate them for service of process. Id.
On March 19, 2019, plaintiff notified the court that defendant Arnold is no longer the Warden at California State Prison-Solano and that he does "not know how, or what [he] is supposed to do." ECF No. 25. He also seeks an extension of time to effect service of process. ECF No. 26.
In this case, the court ordered the United States Marshal to effect service on defendant Arnold solely because he "may be able to appropriately respond to any injunctive relief that plaintiff may be entitled to." ECF No. 17. However, plaintiff is no longer housed at California State Prison-Solano. See ECF No. 21 (Notice of Change of Address). Thus, even if the United States Marshal had effected service of process on Arnold, Arnold would not be the person poised to carry out any court order granting plaintiff injunctive relief, i.e., single cell status. See ECF No. 15 at 11. Therefore, defendant Arnold should be dismissed pursuant to Rule 4(m). If injunctive relief is granted in this case, the warden of the appropriate institution can be added as a defendant in his or her official capacity only, for the purpose of carrying out such injunctive relief.
As for defendant Ibrahim, plaintiff states that he provided the United States Marshal with the address provided on "medical reports" and does not know why he could not be served. ECF No. 25. If plaintiff wishes to pursue this action against defendant Ibrahim, he must promptly provide new information about how to locate this defendant for service of process. In this case, plaintiff may need to find a different address for service of process. If plaintiff's access to the required information is unreasonably denied or delayed, he may seek judicial intervention.
Accordingly, it is ORDERED that:
1. The Clerk of the Court shall mail plaintiff one form USM-285.
2. Within 30 days from the date this order is served, plaintiff must submit the attached Notice of Submission of Documents with the completed form USM-285 providing new instructions for service of process upon defendant Ibrahim.
3. Failure to comply with this order or to show good cause for such failure will result in a recommendation that defendant Ibrahim be dismissed pursuant to Rule 4(m).
4. Plaintiff's request for an extension of time (ECF No. 26) is denied as moot.
5. The Clerk of the Court shall randomly assign a United States District Judge to this action.
Further, it is RECOMMENDED that defendant Arnold be dismissed. See Fed. R. Civ. P. 4(m).
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). DATED: May 16, 2019.
/s/_________
EDMUND F. BRENNAN
UNITED STATES MAGISTRATE JUDGE No. 2:16-cv-0387-EFB P
NOTICE OF SUBMISSION OF DOCUMENTS
Plaintiff hereby submits the following documents in compliance with the court's order filed __________:
1 completed USM-285 form DATED:
/s/_________
Plaintiff