Beitman v. Correct Clear Solutions et al
Filing
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ORDER ADOPTING REPORT AND RECOMMENDATION re: 49 Report and Recommendation. The Objections (Doc. 53 ) are overruled and Defendant Rollins is dismissed for failure to serve, without prejudice. Signed by Senior Judge James A Teilborg on 2/26/19. (DXD)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Michael Lee Beitman,
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Plaintiff,
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ORDER
v.
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No. CV-17-03829-PHX-JAT (BSB)
Correct Clear Solutions, et al.,
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Defendants.
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Pending before the Court is the Report and Recommendation (“R&R”) from the
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Magistrate Judge (Doc. 49) recommending that Defendant Bennie Rollins be dismissed for
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failure to timely serve. Plaintiff has objected to the R&R. The Court will review the
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portions of the R&R to which there is an objection de novo. United States v. Reyna-Tapia,
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328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (“statute makes it clear that the district judge
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must review the magistrate judge’s findings and recommendations de novo if objection is
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made, but not otherwise” (emphasis in original)).
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Plaintiff does not dispute that Defendant Rollins had not been served. Plaintiff
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further does not dispute that the time for service has expired. Instead Plaintiff claims that
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the Court should do more to help him accomplish served.
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As recounted in the R&R, Defendant Rollins no longer works for, or with, the other
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Defendants in this case. (Doc. 49). Nonetheless, the Magistrate Judge ordered the
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appearing Defendants to submit Defendant Rollins’ last known address under seal. (Id.).
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Using that address, the Marshals attempted to serve Defendant Rollins. (Id.). The
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Marshals were advised that Defendant Rollins does not reside at the address provided.
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(Id.). Having exhausted all avenues for discovering Defendant Rollins’ address, the
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Magistrate Judge recommends that Defendant Rollins be dismissed, without prejudice.
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Plaintiff objects arguing that this Court could take a variety of actions to aid
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Plaintiff. Specifically, Plaintiff suggests that the Court could appoint him counsel, make
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the attorneys for the other Defendants accept service for Mr. Rollins, or order the Marshals
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to locate Mr. Rollins. None of these options are required or appropriate.
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First, the Magistrate Judge has already denied appointment of counsel (Doc. 55) and
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this Court agrees with that decision. Moreover, investigative services are not the purpose
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of appointing counsel. (Id.) Second, the Court cannot force attorneys to accept service for
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someone they do not represent. Third, the Marshals are not investigators for Plaintiff.
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While the Court understands there are limits to Plaintiff’s resources in prison, the Marshals
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are not his staff to investigate and pursue his private litigation interests.
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Thus, the Court agrees with the R&R that on this record, there is no likelihood of
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accomplishing service.
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remedy. Therefore,
Accordingly, dismissal without prejudice is the appropriate
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IT IS ORDERED that the Report and Recommendation (Doc. 49) is accepted; the
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objections (Doc. 53) are overruled; Defendant Rollins is dismissed for failure to serve,
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without prejudice.
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Dated this 26th day of February, 2019.
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