Opinion
2:22-cv-0423 KJM DB PS
03-28-2023
YOLANDA LEWIS, Plaintiff, v. SCOTT L. JONES, et al., Defendants.
ORDER AND FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE
Plaintiff Yolanda Lewis is proceeding in this action pro se. This matter was referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). On March 7, 2022, plaintiff filed a complaint, paid the applicable filing fee, and summons issued. (ECF Nos. 1 & 4.) A letter also issued that advised plaintiff that Rule 4(m) of the Federal Rules of Civil Procedure provides that a defendant must be dismissed if service of the summons and complaint is not accomplished on the defendant within 90 days after the complaint was filed. (ECF No. 5.)
On March 8, 2022, plaintiff filed a document styled “EXIGENT CIRCUMSTANCES EX PARTE APPLICATION FOR ORDER BY BODY WRIT WITHOUT NOTICE TO PATIES (sic) FOR GOOD CAUSE.” (ECF No. 6 at 1.) Therein, plaintiff requests the release “to prevent injury to the man being held surety for an unlawful commercial debt, against an Indigenous American Autochthon Indian Heir, Beneficiary by the creation of illegal trust[.]” (Id.) The document seeks an order requiring “the United States Marshall Service” to “seize the body of Wilson Maurice Davis, Notary Peace Officer, The League of American Autochthon Heirs, Tribal Nation, from the Sacramento County Jail Immediately[.]” (Id. at 8.) The document is essentially indecipherable and fails to provide authority to support plaintiff obtaining an order directing the Marshall Service to seize a third party being detained in the Sacramento County Jail.
Moreover, no defendant has appeared in this action and plaintiff has not filed a proof of service on a defendant. Accordingly, on October 25, 2022, the undersigned issued plaintiff an order to show cause as to why this action should not be dismissed due to a lack of prosecution. (ECF No. 8.) On November 9, 2022, plaintiff filed a document styled “NOTICE OF REMOVAL OF CLAIMS AGAINST THE UNITED STATES.” (ECF No. 9.) Again, the document is essentially indecipherable, with allegations such as that the “Defendants continue to engage in genocide by the trafficking of manumitted protect class persons outside the District of Columbia, City of Washington to enforce disappearance by paper genocide[.]” (Id. at 3.)
Although the undersigned is cognizant of the challenges faces by pro se litigants, over a year has passed and no defendant has appeared in this action. Plaintiff has been provided more than ample opportunity to serve a defendant but has failed to do so.
Rule 4(m) provides two avenues for relief. The first is mandatory: the district court must extend time for service upon a showing of good cause. The second is discretionary: if good cause is not established, the district court may extend time for service upon a showing of excusable neglect.Crowley v. Bannister, 734 F.3d 967, 976 (9th Cir. 2013) (quoting Lemoge v. United States, 587 F.3d 1188, 1198 (9th Cir. 2009)). Here, plaintiff has shown neither good cause nor excusable neglect.
Accordingly, IT IS HEREBY ORDERED that plaintiff's March 8, 2022, ex parte application (ECF No. 6) is denied without prejudice to renewal.
It is also HEREBY RECOMMENDED that this action be dismissed without prejudice pursuant to Rule 4(m).
These findings and recommendations will be 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, plaintiff may file written objections with the court. A document containing objections should be titled “Objections to Magistrate Judge's Findings and Recommendations.” Plaintiff is advised that failure to file objections within the specified time may, under certain circumstances, waive the right to appeal the District Court's order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).