Porter v. Jennings et al

Filing 128

ORDER ADOPTING 116 FINDINGS AND RECOMMENDATIONS and DISMISSING Defendant Darlene Austin From Action signed by District Judge Anthony W. Ishii on 4/11/2013. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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SAMUEL KENNETH PORTER,

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CASE NO. 1:10-cv-01811-AWI-DLB PC

Plaintiff,

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DISMISSING
DEFENDANT DARLENE AUSTIN FROM
ACTION

v.
CAPTAIN JENNINGS, et al.,

ECF No. 116
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Defendants.

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Plaintiff Samuel Kenneth Porter (“Plaintiff”) is a California state prisoner proceeding pro se

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in this civil rights action pursuant to 42 U.S.C. § 1983. On January 28, 2013, the United States

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Marshal returned a summons unexecuted as to Defendant Darlene Austin . ECF No. 113. The

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matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and

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Local Rule 302.

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On February 12, 2013, the Magistrate Judge filed a Findings and Recommendations

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(F&R)which was served on the parties and which contained notice to the parties that any objection

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to the Findings and Recommendations was to be filed within fourteen days. ECF No. 116. Plaintiff

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filed an Objection to the F&R on March 14, 2013. ECF No. 120.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1), this Court has conducted a de

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novo review of this case. Although the docket entry indicates that the objections are in reference to

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the February 12, 2013 F&R, the substance of the objections appear to relate only to a previous

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Findings and Recommendation. That previous Findings and Recommendation, which was adopted

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over Defendants’ objections, recommended denying Defendants’ motion for summary judgment.
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See Doc. Nos. 115, 121. Plaintiff’s objections in no way affect either this F&R or the previous

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Findings and Recommendation.

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Having carefully reviewed the entire file, the Court finds the Findings and Recommendations
to be supported by the record and by proper analysis.

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Accordingly, IT IS HEREBY ORDERED that:

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The Findings and Recommendations, filed February 12, 2013, is adopted in full; and

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Defendant Darlene Austin is dismissed from this action without prejudice for failure

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to effect service of process pursuant to Rule 4(m) of the Federal Rules of Civil

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Procedure.
IT IS SO ORDERED.
Dated:
0m8i78

April 11, 2013
SENIOR DISTRICT JUDGE

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