Ochotorena v. Adams et al

Filing 102

FINDINGS and RECOMMENDATION Recommending that Defendant Astorga be Dismissed from this Action without Prejudice for Failure to Effect Service; Objections Due within Fourteen (14) Days signed by Magistrate Judge Dennis L. Beck on 5/6/2011. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 5/26/2011. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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9 RICHARD A. OCHOTORENA,
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CASE NO. 1:05-CV-01524-LJO-DLB PC

Plaintiff,

FINDINGS AND RECOMMENDATION
RECOMMENDING DISMISSAL OF
DEFENDANT ASTORGA WITHOUT
PREJUDICE

v.

12 DERRAL ADAMS, et al.,
(DOC. 101)
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Defendants.
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OBJECTIONS DUE WITHIN FOURTEEN
(14) DAYS

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Plaintiff Richard A. Ochotorena (“Plaintiff”) is a prisoner in the custody of the California

17 Department of Corrections and Rehabilitation (“CDCR”). On January 7, 2010, the Court
18 directed the United States Marshal to re-attempt service on Defendant J. M. Astorga. On April
19 25, 2011, the Marshal returned the summons unexecuted. Doc. 101. As indicated by the
20 Marshal, personal service was attempted, but no such individual could be located.
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Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure,

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If a defendant is not served within 120 days after the complaint is filed, the court 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
specified time. But if the plaintiff shows good cause for the failure, the court
must extend the time for service for an appropriate period.

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25 Fed. R. Civ. P. 4(m). Where a pro se plaintiff fails to provide the Marshal with accurate and
26 sufficient information to effect service of the summons and complaint, the Court’s sua sponte
27 dismissal of the unserved defendants is appropriate. Walker v. Sumner, 14 F.3d 1415, 1421-22
28 (9th Cir. 1994), abrogated in part on other grounds, Sandin v. Conner, 515 U.S. 472 (1995).
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Based on the foregoing, it is HEREBY RECOMMENDED that Defendant Astorga be

2 dismissed from this action without prejudice for failure to effect service pursuant to Rule 4(m) of
3 the Federal Rules of Civil Procedure.
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These Findings and Recommendation will be submitted to the United States District

5 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen
6 (14) days after being served with these Findings and Recommendations, the parties may file
7 written objections with the Court. The document should be captioned “Objections to Magistrate
8 Judge’s Findings and Recommendations.” The parties are advised that failure to file objections
9 within the specified time may waive the right to appeal the District Court’s order. Martinez v.
10 Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).
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IT IS SO ORDERED.
Dated:

May 6, 2011

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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