Robert J. Dixon v. Yates et al

Filing 50

FINDINGS and RECOMMENDATIONS Recommending Dismissal of Action; Objections, if any, Due within Eighteen Days signed by Magistrate Judge Dennis L. Beck on 1/11/2012. Referred to Judge Anthony W. Ishii. Objections to F&R due by 2/1/2012. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ROBERT JAMES DIXON,

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CASE NO. 1:09-CV-00657-AWI-DLB PC

Plaintiff,

FINDINGS AND RECOMMENDATION
RECOMMENDING DISMISSAL OF
ACTION

v.
JAMES A. YATES, et al.,

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OBJECTIONS, IF ANY, DUE WITHIN
EIGHTEEN DAYS

Defendants.

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/

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Plaintiff Robert James Dixon (“Plaintiff”) is a California state prisoner proceeding pro se

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

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proceeding on Plaintiff’s first amended complaint, filed October 15, 2009. Doc. 1. On April 30,

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2010, the Court directed the United States Marshal to effect service on two Defendants, including

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Defendant Diep. Doc. 18.

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summons unexecuted. Doc. 19. On February 2, 2011, the Court issued an order directing the

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United States Marshal to re-attempt service of process on Defendant Diep. Doc. 32. The Marshal

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Service was unable to locate Defendant Diep, and returned the summons unexecuted on

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December 21, 2011. Doc. 47. Defendant Diep is the only Defendant remaining in this action.

On August 20, 2010, the United States Marshal returned the

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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 Defendant Diep this action, but was unsuccessful. The

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forwarding address provided for Defendant Diep is a vacant lot.

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Accordingly, it is HEREBY RECOMMENDED that Defendant Diep be dismissed from
this action without prejudice for failure to effect service of process pursuant to Federal Rule of
Civil Procedure 4(m), and this action be dismissed.
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:
3b142a

January 11, 2012

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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