Lombardelli v. Halsey, et al.

Filing 52

FINDINGS and RECOMMENDATIONS, signed by Magistrate Judge Dennis L. Beck on 3/22/11: Recommending that Defendant T. Hebron be dismissed from this action without prejudice for failure to effect service of process pursuant to Federal Rule of Civil Procedure 4(m) re 18 Amended Complaint filed by Alfred C. Lombardelli; Objections to F&R due within eighteen (18) days after being served with these Findings and Recommendations. (Hellings, J)

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-DLB (PC) Lombardelli v. Halsey, et al. Doc. 52 1 2 3 4 5 6 EASTERN DISTRICT OF CALIFORNIA 7 8 ALFRED LOMBARDELLI, 9 10 v. Plaintiff, CASE NO. 1:08-CV-00658-AWI-DLB PC FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF DEFENDANT T. HEBRON WITHOUT PREJUDICE FOR FAILURE TO EFFECT SERVICE OF PROCESS OBJECTIONS, IF ANY, DUE WITHIN EIGHTEEN DAYS / UNITED STATES DISTRICT COURT 11 K. HALSEY, et al., 12 13 14 15 Defendants. Plaintiff Alfred Lombardelli ("Plaintiff") is a California state prisoner proceeding pro se 16 and in forma pauperis in this civil rights action pursuant to 42 U.S.C. 1983. This action is 17 proceeding on Plaintiff's second amended complaint, filed March 10, 2009. Docs. 15, 18. On 18 June 2, 2009, the Court issued an order directing the United States Marshal to initiate service of 19 process on Defendant T. Hebron. Doc. 22. The Marshal Service was unable to locate Defendant 20 T. Hebron, and returned the summons unexecuted on June 25, 2009. Doc. 23. On February 2, 21 2011, the Court issued an order to show cause within thirty days why Defendant T. Hebron 22 should not be dismissed for failure to effect service of process. Plaintiff has not responded to this 23 Court's order. 24 25 26 27 Pursuant to Rule 4(m), 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. 28 Fed. R. Civ. P. 4(m). 1 Dockets.Justia.com 1 Where a pro se plaintiff fails to provide the Marshal with accurate and sufficient 2 information to effect service of the summons and complaint, the Court's sua sponte dismissal of 3 the unserved defendants is appropriate. Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 1994) 4 (quoting Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990)), abrogated in part on other 5 grounds, Sandin v. Conner, 515 U.S. 472 (1995). 6 Accordingly, it is HEREBY RECOMMENDED that Defendant T. Hebron be dismissed 7 from this action without prejudice for failure to effect service of process pursuant to Federal Rule 8 of Civil Procedure 4(m). 9 These Findings and Recommendations will be submitted to the United States District 10 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. 636(b)(1). Within eighteen 11 (18) days after being served with these Findings and Recommendations, the parties may file 12 written objections with the Court. The document should be captioned "Objections to Magistrate 13 Judge's Findings and Recommendations." The parties are advised that failure to file objections 14 within the specified time may waive the right to appeal the District Court's order. Martinez v. 15 Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 16 17 18 19 20 21 22 23 24 25 26 27 28 2 IT IS SO ORDERED. Dated: 3b142a March 22, 2011 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE

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