(PC) Smith v. Guitron

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSEPH JERMAINE SMITH, Case No. 1:25-cv-01222-JLT-BAM (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS DEFENDANT S. STEVENSEN 13 v. (ECF No. 23) 14 GUITRON, et al., FOURTEEN (14) DAY DEADLINE 15 Defendants. 16 17 I. Background 18 Plaintiff Joseph Jermaine Smith is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on 20 Plaintiff’s second amended complaint against Defendants Ali Guitron, Jorge Reyes-Mercado, R. 21 Rensen, S. Stevensen, and Y. Trejo for excessive force in violation of the Eighth Amendment. 22 On July 7, 2026, the Court issued an order directing service on Defendants Guitron, 23 Reyes-Mercado, R. Rensen, S. Stevensen, and Y. Trejo under the Court’s E-Service pilot program 24 for civil rights cases in the Eastern District of California. (ECF No. 18.) The order included the 25 following information regarding Defendant Stevensen: “S. Stevensen, Correctional Officer; 26 North Kern State Prison.” (Id. at 2.) On July 15, 2026, the Court received information that 27 Defendant Stevensen could not be identified. Service documents were forwarded to the United 28 States Marshals Service. On July 22, 2026, the United States Marshal filed a return of service 1 unexecuted as to Defendant S. Stevensen. (ECF No. 22.) The U.S. Marshal attempted personal 2 service on Defendant S. Stevensen, but also was informed that S. Stevensen could not be 3 identified. (Id.) 4 On July 30, 2026, the Court issued an order directing Plaintiff to show cause why 5 Defendant S. Stevensen should not be dismissed from this action. (ECF No. 23.) Plaintiff filed a 6 response to the show cause order on August 31, 2026. (ECF No. 26.) According to the response, 7 Plaintiff was searching property for the incident report that shows Defendant Stevensen as the 8 escorting officer. Plaintiff is unable to find the incident report from July 9, 2020, to show that 9 Stevensen was a part of the violation. He claims that the report is missing. (Id.) 10 II. Discussion 11 Pursuant to Federal Rule of Civil Procedure 4(m): 12 If a defendant is not served within 90 days after the complaint is filed, the court— 13 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 14 specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. 15 16 Fed. R. Civ. P. 4(m). 17 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the 18 court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “[A]n incarcerated pro 19 se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the 20 summons and complaint, and . . . should not be penalized by having his or her action dismissed 21 for failure to effect service where the U.S. Marshal or the court clerk has failed to perform the 22 duties required of each of them . . . .” Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). “So 23 long as the prisoner has furnished the information necessary to identify the defendant, the 24 marshal’s failure to effect service is ‘automatically good cause . . . .’” Walker v. Sumner, 14 F.3d 25 1415, 1422 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472, 115 26 (1995). However, where a pro se plaintiff fails to provide the Marshal with accurate and 27 sufficient information to effect service of the summons and complaint, the Court’s sua sponte 28 dismissal of the unserved defendant is appropriate. Walker, 14 F.3d at 1421–22. 1 Plaintiff has been granted an opportunity to provide sufficient information to identify 2 Defendant Stevensen so that the United States Marshal may serve the summons and complaint. 3 Despite a warning that failure to do so would result in dismissal of any unidentified defendants 4 from this action, Plaintiff has not complied with the Court’s order. In addition, Plaintiff has failed 5 to set forth good cause for his failure to identify Defendant Stevensen and has failed to provide 6 any explanation detailing the efforts taken to locate information regarding Defendant Stevensen 7 after being unable to find the incident report in a search of his property. 8 III. Recommendation 9 Accordingly, the Court HEREBY RECOMMENDS that Defendant Stevensen be 10 dismissed from this action, without prejudice, pursuant to Federal Rule of Civil Procedure 4(m). 11 These Findings and Recommendations will be submitted to the United States District 12 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 13 fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may 14 file written objections with the court. The document should be captioned “Objections to 15 Magistrate Judge’s Findings and Recommendations.” Objections, if any, shall not exceed 16 fifteen (15) pages. Any pages filed in excess of the 15-page limit may not be 17 considered. Exhibits shall not be filed with objections, but they may be referenced by the 18 document and page number. No new exhibits may be filed with objections. Plaintiff is 19 advised that failure to file objections within the specified time may result in the waiver of the 20 “right to challenge the magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 21 834, 838–39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 22 IT IS SO ORDERED. 23 24 Dated: September 2, 2026 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 25 26 27 28