Landau v. Voss et al

Filing 107

ORDER Withdrawing Orders (Doc. 71 , 74 ), FINDINGS and RECOMMENDATIONS Recommending Dismissal Of Defendants Roberto Morisho And W.T. Voss From Action (Docs. 70 , 73 ), Objections, If Any, Due Within Fourteen Days, signed by Magistrate Judge Dennis L. Beck on 12/13/2011. F&R's referred to Judge Anthony W. Ishii; Objections to F&R due by 12/30/2011. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SID LANDAU,

CASE NO. 1:07-CV-00815-AWI-DLB PC

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Plaintiff,

ORDER WITHDRAWING ORDERS
(DOCS. 71, 74)

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v.
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FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF
DEFENDANTS ROBERTO MORISHO AND
W. T. VOSS FROM ACTION
(DOCS. 70, 73)

W. T. VOSS, et al.,
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Defendants.
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/

OBJECTIONS, IF ANY, DUE WITHIN
FOURTEEN DAYS

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Plaintiff Sid Landau (“Plaintiff”) is a civil detainee proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On May 6, 2010 and August

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24, 2010, the Court dismissed Defendants Roberto Morisho and W. T. Voss from this action.

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Docs. 71, 74. However, the Court finds that these orders are beyond the scope of jurisdiction as

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stated in 28 U.S.C. § 636(b). Accordingly, the Court will withdraw those orders and issue the

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following Findings and Recommendations.

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On April 19, 2010, the United States Marshal, who must effect service of process on

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behalf of plaintiffs proceeding in forma pauperis, returned a summons for Defendant W. T. Voss

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unexecuted. Doc. 70. According to the summons, Defendant Voss is deceased. In light of the

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suggestion in the record of Defendant Voss’s death, the Court will dismiss Defendant Voss from

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this action. On August 12, 2010, the United States Marshal returned a summons for Defendant

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Roberto Morisho unexecuted. Doc. 73. According to the summons, the house is vacant. Thus,

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the address provided by Plaintiff was no longer accurate. This was the United States Marshal’s

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second attempt to serve process on both Defendants. Where a pro se, in forma pauperis plaintiff
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fails to provide the Marshal with accurate and sufficient information to effect service of the

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summons and complaint, the Court’s sua sponte dismissal of the unserved defendants is

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appropriate. Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 1994) (quoting Puett v.

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Blandford, 912 F.2d 270, 275 (9th Cir. 1990)), abrogated in part on other grounds, Sandin v.

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Conner, 515 U.S. 472 (1995).

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Accordingly, it is HEREBY ORDERED that the Court’s Orders, filed May 6, 2010 and
August 24, 2010, are withdrawn.

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It is HEREBY RECOMMENDED that Defendants W. T. Voss and Roberto Morisho be

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dismissed from this action, without prejudice, pursuant to Federal Rule of Civil Procedure 4(m).

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen

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(14) days after being served with these Findings and Recommendations, the parties may file

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written objections with the Court. The document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendations.” The parties are advised that failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Martinez v.

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Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:
3b142a

December 13, 2011

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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