Hamilton v. Hart et al
FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Erica P. Grosjean on 1/18/2017 recommending dismissal of Doe Defendant re 1 Prisoner Civil Rights Complaint. Referred to Judge Dale A. Drozd; Objections to F&R due by 2/24/2017. (Lundstrom, T)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
DENNIS L. HAMILTON,
Case No. 1:10-cv-00272-DAD-EPG
JOHN HART, et al.
RECOMMENDING DISMISSAL OF
OBJECTIONS, IF ANY, DUE
WITHIN 30 DAYS
Plaintiff Dennis Hamilton is a 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 the original
complaint for a number of alleged Eighth Amendment violations. Among the defendants is a
Doe Lieutenant whom Plaintiff was unable to identify at the time he filed the Complaint. As
explained in the Court’s Scheduling Order (ECF No. 92), Defendants were required to assist
Plaintiff in identifying any Doe defendants and Plaintiff then had the responsibility to move to
amend the Complaint no later than January 6, 2017. On January 11, 2017, the parties appeared
for a discovery status conference and explained that they had been unable to identify the Doe
Lieutenant from Plaintiff’s Complaint. Plaintiff was also unable to provide any other identifying
information for the Doe Lieutenant and did not offer any reason why the Doe Lieutenant should
not be dismissed from this action.
Rule 4(m) of the Federal Rules of Civil Procedure provides, in relevant part:
If a defendant is not served within 90 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.
Plaintiff has failed to set forth good cause for his failure to identify the Doe Lieutenant
so that the United States Marshal could serve a summons and the complaint. Accordingly, the
Court RECOMMENDS that Defendant Doe Lieutenant be DISMISSED from this action,
without prejudice, pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.
These findings and recommendations will be submitted to the United States District
Judge assigned to this case pursuant to the provisions of Title 28 of the United States Code
section 636(b)(1). Within thirty (30) 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. Bastidas v. Chappell, 791 F.3d 1155, 1159 (9th Cir. 2015).
IT IS SO ORDERED.
January 18, 2017
UNITED STATES MAGISTRATE JUDGE
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