Avery v. Director of CDCR, et al.

Filing 100

ORDER ADOPTING 95 FINDINGS AND RECOMMENDATIONS; ORDER Dismissing Defendant Bascom from this Action signed by District Judge Lawrence J. O'Neill on 04/16/2012. (Flores, E)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SHANNON LEWIS AVERY, SR.,

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Plaintiff,

ORDER ADOPTING FINDINGS
AND RECOMMENDATIONS
(Doc. 95)

vs.
CDCR DIRECTOR, et al.,

ORDER DISMISSING DEFENDANT
BASCOM FROM THIS ACTION
PURSUANT TO RULE 4(m)

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1:07-cv-01175-LJO-GSA-PC

Defendants.
_____________________________/

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Shannon Lewis Avery, Sr. (“Plaintiff”), is a former state prisoner proceeding pro se in this civil

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rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge

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pursuant to 28 U.S.C. ' 636(b)(1)(B) and Local Rule 302. On February 23, 2012, findings and

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recommendations were entered, recommending that defendant Bascom be dismissed from this action

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pursuant to Federal Rule of Civil Procedure 4(m), based on Plaintiff's failure to provide information to

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enable service of process.

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recommendations.

On March 21, 2012, Plaintiff filed objections to the findings and

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In accordance with the provisions of 28 U.S.C. ' 636 (b)(1)(B) and Local Rule 304, this Court

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has conducted a de novo review of this case. Having carefully reviewed the entire file, including

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Plaintiff's objections, the Court finds the findings and recommendations to be supported by the record

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and proper analysis.

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Plaintiff maintains that the Court should make further efforts to identify and locate defendant

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Bascom to enable the United States Marshal (Marshal) to serve him with process. Plaintiff requests the

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Court to direct the Marshal to locate defendant Bascom through work records at Avenal State Prison

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from the morning of August 20, 2006. Plaintiff also maintains that the Court should require other

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defendants and witnesses to further identify the defendant they call "Bascom." Plaintiff requests the

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Court to locate Registered Nurse A. McGraw, who witnessed the incident at issue on August 20, 2006,

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and request information from her about defendant Bascom's identity. Plaintiff also requests a court order

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directing the Legal Affairs Division of the CDCR to question defendants and witnesses about the

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"Defendant who dropped Plaintiff." (Doc. 96 at 3:26-28.)

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As discussed by the Magistrate Judge in the findings and recommendations, the Court and the

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Marshal have exhausted the avenues available to them for identifying and locating this defendant on

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behalf of Plaintiff. The Court has twice issued orders directing the Marshal to attempt service upon

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defendant Bascom, without success. In the second order, the Court required the Marshal to enlist the

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assistance of the Legal Affairs Division of the CDCR. Both times, prison officials found no record of

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a current or former correctional officer named Bascom. It is Plaintiff's responsibility to provide the

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Marshal with accurate and sufficient information to effect service of the summons and complaint, and

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Plaintiff appears unable to provide such information. Therefore, defendant Bascom shall be dismissed

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from this action. Walker, 14 F.3d at 1421-22.

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Accordingly, THE COURT HEREBY ORDERS that:

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1.

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The Findings and Recommendations issued by the Magistrate Judge on February 23,
2012, are adopted in full;

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2.

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Defendant Bascom is dismissed from this action pursuant to Rule 4(m), based on
Plaintiff’s failure to effect service upon him; and

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3.

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The Clerk of Court is directed to reflect the dismissal of defendant Bascom from this
action on the court's docket.

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IT IS SO ORDERED.

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Dated:
b9ed48

April 16, 2012

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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