Lopez v. Florez et al

Filing 70

ORDER Adopting FINDINGS AND RECOMMENDATIONS To Dismiss Defendant "Veronica" Without Prejudice For Lack Of Service (Doc. 66 ), signed by District Judge Lawrence J. O'Neill on 9/11/2012. (Fahrney, 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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ANDREW R. LOPEZ,

Case No. 1:08-cv-01975-LJO-JLT (PC)

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v.
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Plaintiff, ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS TO DISMISS
DEFENDANT “VERONICA” WITHOUT
PREJUDICE FOR LACK OF SERVICE

FLOREZ, et al.,
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(Doc. 66).
Defendants.

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Plaintiff is a state prisoner proceeding pro se with this civil rights action pursuant to 42

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U.S.C. § 1983. (Doc. 1). Despite several attempts by the U.S. Marshall’s Service (“USMS”) to

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serve Defendant “Veronica,” service could not be accomplished.1 (Doc. 66 (citing Docs. 33, 34,

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35, 40, 65)).

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On August 15, 2012, Magistrate Judge Thurston issued Findings and Recommendations to

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dismiss Defendant “Veronica” without prejudice for lack of service. (Doc. 66). The Findings

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and Recommendations explained that Federal Rules of Civil Procedure section 4(m) requires that
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Magistrate Judge Thurston’s Findings and Recommendations note that Plaintiff has only
been able to provide the name “Veronica,” but has never known if that was a first or last name.
(Doc. 69 (citing Doc. 36 at 1)). There were two other Defendants named in Plaintiff’s action who
were eventually served.

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service be accomplished within 120 days after the complaint is filed. (Doc. 66). Given that

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Plaintiff provided the Court with little information about Defendant “Veronica,” that the USMS

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made several attempts at service over the last seven months and later certified that “Veronica”

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could not be located, Magistrate Judge Thurston recommended that Defendant “Veronica” be

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dismissed.

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Plaintiff was advised in the August 24, 2012 Findings and Recommendations that he had

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14 days to object. (Doc. 66). Despite the Court’s warning, Plaintiff did not submit objections to

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the Magistrate Judge’s findings and recommendations.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Britt v. Simi Valley

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United School Dist., 708 F.2d 452, 454 (9th Cir. 1983), the Court has conducted a de novo review

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of the case. Having carefully, reviewed the entire file, the Court finds that the Findings and

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Recommendations are supported by the record and by proper analysis.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The Findings and Recommendations filed August 24, 2012 are ADOPTED IN
FULL; and

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2. Plaintiff’s action against Defendant “Veronica” only.is DISMISSED WITHOUT

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PREJUDICE.

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IT IS SO ORDERED.

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Dated:

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

DEAC_Signature-END:

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September 11, 2012

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