Woodall v. State of California et al
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)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
CASE NO. 1:08-CV-01948-OWW-DLB PC
FINDINGS AND RECOMMENDATION
RECOMMENDING DISMISSAL OF
DEFENDANT VALDEZ WITHOUT
PREJUDICE FOR FAILURE TO EFFECT
SERVICE OF PROCESS
STATE OF CALIFORNIA, et al.,
OBJECTIONS, IF ANY, DUE WITHIN
Plaintiff Nick Woodall (“Plaintiff”) is a California state prisoner proceeding pro se and in
forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding
on Plaintiff’s complaint, filed December 22, 2008. Doc. 1. On November 30, 2009, the Court
directed the United States Marshal to effect service on seven Defendants, including Defendant
Valdez. Doc. 18. A person by the name of L. Valdez filed a waiver of service and appeared in
this action. Doc. 22. However, Plaintiff later sought dismissal of L. Valdez as she was the
incorrect party. Doc. 52. On October 19, 2010, the Court issued an order directing the United
States Marshal to re-attempt service of process on the correct Defendant Valdez. Doc. 56. The
Marshal Service was unable to locate Defendant Valdez, and returned the summons unexecuted
on March 25, 2011. Doc. 87.
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.
Fed. R. Civ. P. 4(m).
Where a pro se plaintiff fails to provide the Marshal with accurate and sufficient
information to effect service of the summons and complaint, the Court’s sua sponte dismissal of
the unserved defendants is appropriate. Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 1994)
(quoting Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990)), abrogated in part on other
grounds, Sandin v. Conner, 515 U.S. 472 (1995). The United States Marshal has now twice
attempted to effect service of process on the correct Defendant Valdez in this action, but was
Accordingly, it is HEREBY RECOMMENDED that Defendant Valdez be dismissed
from this action without prejudice for failure to effect service of process pursuant to Federal Rule
of Civil Procedure 4(m).
These Findings and Recommendations will be submitted to the United States District
Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within eighteen
(18) days after being served with these Findings and Recommendations, the parties may file
written objections with the Court. The document should be captioned “Objections to Magistrate
Judge’s Findings and Recommendations.” The parties are advised that failure to file objections
within the specified time may waive the right to appeal the District Court’s order. Martinez v.
Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).
IT IS SO ORDERED.
June 7, 2011
/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE
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