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)

Download PDF
1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 NICK WOODALL, 9 10 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. 11 STATE OF CALIFORNIA, et al., 12 Defendants. 13 OBJECTIONS, IF ANY, DUE WITHIN EIGHTEEN DAYS / 14 15 Plaintiff Nick Woodall (“Plaintiff”) is a California state prisoner proceeding pro se and in 16 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding 17 on Plaintiff’s complaint, filed December 22, 2008. Doc. 1. On November 30, 2009, the Court 18 directed the United States Marshal to effect service on seven Defendants, including Defendant 19 Valdez. Doc. 18. A person by the name of L. Valdez filed a waiver of service and appeared in 20 this action. Doc. 22. However, Plaintiff later sought dismissal of L. Valdez as she was the 21 incorrect party. Doc. 52. On October 19, 2010, the Court issued an order directing the United 22 States Marshal to re-attempt service of process on the correct Defendant Valdez. Doc. 56. The 23 Marshal Service was unable to locate Defendant Valdez, and returned the summons unexecuted 24 on March 25, 2011. Doc. 87. 25 Pursuant to Rule 4(m), 26 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. 1 27 28 1 Fed. R. Civ. P. 4(m). 2 Where a pro se plaintiff fails to provide the Marshal with accurate and sufficient 3 information to effect service of the summons and complaint, the Court’s sua sponte dismissal of 4 the unserved defendants is appropriate. Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 1994) 5 (quoting Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990)), abrogated in part on other 6 grounds, Sandin v. Conner, 515 U.S. 472 (1995). The United States Marshal has now twice 7 attempted to effect service of process on the correct Defendant Valdez in this action, but was 8 unsuccessful. 9 Accordingly, it is HEREBY RECOMMENDED that Defendant Valdez be dismissed 10 from this action without prejudice for failure to effect service of process pursuant to Federal Rule 11 of Civil Procedure 4(m). 12 These Findings and Recommendations will be submitted to the United States District 13 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within eighteen 14 (18) days after being served with these Findings and Recommendations, the parties may file 15 written objections with the Court. The document should be captioned “Objections to Magistrate 16 Judge’s Findings and Recommendations.” The parties are advised that failure to file objections 17 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 18 Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 19 20 IT IS SO ORDERED. Dated: June 7, 2011 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?