Woodall v. State of California et al

Filing 93

FINDINGS And RECOMMENDATION Recommending Dismissal Of Defendant Valdez Without Prejudice For Failure To Effect Service Of Process, Objections, If Any, Due Within Eighteen Days, signed by Magistrate Judge Dennis L. Beck on 6/7/2011. Objections to F&R due by 6/28/2011.(Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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NICK WOODALL,

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CASE NO. 1:08-CV-01948-OWW-DLB PC
Plaintiff,

FINDINGS AND RECOMMENDATION
RECOMMENDING DISMISSAL OF
DEFENDANT VALDEZ WITHOUT
PREJUDICE FOR FAILURE TO EFFECT
SERVICE OF PROCESS

v.

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STATE OF CALIFORNIA, et al.,

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Defendants.

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OBJECTIONS, IF ANY, DUE WITHIN
EIGHTEEN DAYS
/

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Plaintiff Nick Woodall (“Plaintiff”) is a California state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding

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on Plaintiff’s complaint, filed December 22, 2008. Doc. 1. On November 30, 2009, the Court

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directed the United States Marshal to effect service on seven Defendants, including Defendant

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Valdez. Doc. 18. A person by the name of L. Valdez filed a waiver of service and appeared in

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this action. Doc. 22. However, Plaintiff later sought dismissal of L. Valdez as she was the

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incorrect party. Doc. 52. On October 19, 2010, the Court issued an order directing the United

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States Marshal to re-attempt service of process on the correct Defendant Valdez. Doc. 56. The

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Marshal Service was unable to locate Defendant Valdez, and returned the summons unexecuted

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on March 25, 2011. Doc. 87.

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Pursuant to Rule 4(m),

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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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Fed. R. Civ. P. 4(m).

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Where a pro se plaintiff fails to provide the Marshal with accurate and sufficient

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information to effect service of the summons and complaint, the Court’s sua sponte dismissal of

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the unserved defendants is appropriate. Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 1994)

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

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grounds, Sandin v. Conner, 515 U.S. 472 (1995). The United States Marshal has now twice

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attempted to effect service of process on the correct Defendant Valdez in this action, but was

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unsuccessful.

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Accordingly, it is HEREBY RECOMMENDED that Defendant Valdez be dismissed

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from this action without prejudice for failure to effect service of process pursuant to Federal Rule

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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 eighteen

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(18) 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, 1156-57 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

June 7, 2011

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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