Beitman v. Correct Clear Solutions et al

Filing 57

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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Michael Lee Beitman, 10 Plaintiff, 11 ORDER v. 12 No. CV-17-03829-PHX-JAT (BSB) Correct Clear Solutions, et al., 13 Defendants. 14 15 Pending before the Court is the Report and Recommendation (“R&R”) from the 16 Magistrate Judge (Doc. 49) recommending that Defendant Bennie Rollins be dismissed for 17 failure to timely serve. Plaintiff has objected to the R&R. The Court will review the 18 portions of the R&R to which there is an objection de novo. United States v. Reyna-Tapia, 19 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (“statute makes it clear that the district judge 20 must review the magistrate judge’s findings and recommendations de novo if objection is 21 made, but not otherwise” (emphasis in original)). 22 Plaintiff does not dispute that Defendant Rollins had not been served. Plaintiff 23 further does not dispute that the time for service has expired. Instead Plaintiff claims that 24 the Court should do more to help him accomplish served. 25 As recounted in the R&R, Defendant Rollins no longer works for, or with, the other 26 Defendants in this case. (Doc. 49). Nonetheless, the Magistrate Judge ordered the 27 appearing Defendants to submit Defendant Rollins’ last known address under seal. (Id.). 28 Using that address, the Marshals attempted to serve Defendant Rollins. (Id.). The 1 Marshals were advised that Defendant Rollins does not reside at the address provided. 2 (Id.). Having exhausted all avenues for discovering Defendant Rollins’ address, the 3 Magistrate Judge recommends that Defendant Rollins be dismissed, without prejudice. 4 Plaintiff objects arguing that this Court could take a variety of actions to aid 5 Plaintiff. Specifically, Plaintiff suggests that the Court could appoint him counsel, make 6 the attorneys for the other Defendants accept service for Mr. Rollins, or order the Marshals 7 to locate Mr. Rollins. None of these options are required or appropriate. 8 First, the Magistrate Judge has already denied appointment of counsel (Doc. 55) and 9 this Court agrees with that decision. Moreover, investigative services are not the purpose 10 of appointing counsel. (Id.) Second, the Court cannot force attorneys to accept service for 11 someone they do not represent. Third, the Marshals are not investigators for Plaintiff. 12 While the Court understands there are limits to Plaintiff’s resources in prison, the Marshals 13 are not his staff to investigate and pursue his private litigation interests. 14 Thus, the Court agrees with the R&R that on this record, there is no likelihood of 15 accomplishing service. 16 remedy. Therefore, Accordingly, dismissal without prejudice is the appropriate 17 IT IS ORDERED that the Report and Recommendation (Doc. 49) is accepted; the 18 objections (Doc. 53) are overruled; Defendant Rollins is dismissed for failure to serve, 19 without prejudice. 20 Dated this 26th day of February, 2019. 21 22 23 24 25 26 27 28 -2-

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