Porter v. Jennings et al
Filing
116
FINDINGS and RECOMMENDATIONS Recommending Defendant Darlene Be Dismissed From Action Without Prejudice 113 OBJECTIONS DUE WITHIN FOURTEEN DAYS, signed by Magistrate Judge Dennis L. Beck on 2/11/13. (Hellings, J)
1
2
3
4
5
6
UNITED STATES DISTRICT COURT
7
EASTERN DISTRICT OF CALIFORNIA
8
9
SAMUEL KENNETH PORTER,
Case No. 1:10-cv-01811-AWI-DLB PC
10
Plaintiff,
11
v.
12
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DEFENDANT
DARLENE BE DISMISSED FROM
ACTION WITHOUT PREJUDICE
CAPTAIN JENNINGS, et al.,
13
ECF No. 113
Defendants.
14
OBJECTIONS DUE WITHIN FOURTEEN
DAYS
15
16
Plaintiff Samuel Kenneth Porter (“Plaintiff”) is a prisoner in the custody of the California
17
Department of Corrections and Rehabilitation (“CDCR”). On April 26, 2012, the Court directed the
18
United States Marshal to re-attempt service on Defendant Darlene Austin. ECF No. 55. On January
19
28, 2013, the Marshal returned the summons unexecuted. ECF No. 113. As indicated by the
20
Marshal, personal service was attempted, but no such individual could be located.
21
22
23
Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure,
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.
24
25
Fed. R. Civ. P. 4(m). Where a pro se plaintiff fails to provide the Marshal with accurate and
26
sufficient information to effect service of the summons and complaint, the Court’s sua sponte
27
dismissal of the unserved defendants is appropriate. Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th
28
Cir. 1994), abrogated in part on other grounds, Sandin v. Conner, 515 U.S. 472 (1995).
1
1
Based on the foregoing, it is HEREBY RECOMMENDED that Defendant Darlene Austin be
2
dismissed from this action without prejudice for failure to effect service pursuant to Rule 4(m) of the
3
Federal Rules of Civil Procedure.
4
These Findings and Recommendations will be submitted to the United States District Judge
5
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) days
6
after being served with these Findings and Recommendations, the parties may file written objections
7
with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and
8
Recommendations.” A party may respond to another party’s objections by filing a response within
9
fourteen (14) days after being served with a copy of that party’s objections. The parties are advised
10
that failure to file objections within the specified time may waive the right to appeal the District
11
Court’s order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).
12
13
14
IT IS SO ORDERED.
15
Dated:
/s/ Dennis
February 11, 2013
L. Beck
UNITED STATES MAGISTRATE JUDGE
16
DEAC_Signature-END:
17
3b142a
18
19
20
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?