Moran v. Dutra et al

Filing 63

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Michael J. Seng on 4/1/2014 recommending that Defendant, Dedee be dismissed from this action re 48 , 49 , 51 . Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 4/18/2014. (Lundstrom, T)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9
10

NICOLAS MORAN,
Plaintiff,

11
12
13
14
15

v.
K. DUTRA, et al.,
Defendants.

Case No. 1:11-cv-0914-LJO-MJS PC
FINDINGS AND
RECOMMENDATIONS FOR
DISMISSAL OF DEFENDANT DEDEE
FROM THIS ACTION PURSUANT TO
RULE 4(M)
(ECF Nos. 48, 49, 51)
FOURTEEN-DAY DEADLINE

_____________________________________/

16
17

Plaintiff Nicolas Moran (“Plaintiff”), a state prisoner proceeding pro se and in forma

18 pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on June 7, 2011.
19

The action proceeds on Plaintiff’s First Amended Complaint against Defendants

20 Auten, Dedee, Dutra, and Ryan.
21

Defendants Auten, Dutra, and Ryan waived service and entered appearances in

22 the action. The United States Marshal was not able to locate Defendant Dedee and
23 service was returned un-executed on January 7, 2013. (ECF No. 21.) The Court ordered
24 the California Department of Corrections and Rehabilitation (“CDCR”) to provide
25
26
27
28

additional contact information for Defendant Dedee to the U.S. Marshall (ECF No. 31),
but the United States Marshal remained unable to locate Defendant Dedee and the
summons was returned unexecuted on July 29, 2013 (ECF No. 32).
On October 10, 2013, the Court issued an order directing Plaintiff to show cause

1 why Defendant Dedee should not be dismissed pursuant to Federal Rule of Civil
2 Procedure 4(m). (ECF No. 48.) This rule provides that:
3
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.

4
5
6
7
8

Plaintiff has failed to show cause why Defendant Dedee should not be dismissed

9 from this action. Instead of addressing the issues raised by the Court’s order, Plaintiff
10 filed a motion for the Court to make additional service attempts on Defendant Dedee.
11 (ECF No. 49.) Plaintiff also filed a motion alleging, without substantiation and apparently
12 based solely on speculation, that the CDCR was withholding Defendant Dedee’s contact
13 information. (ECF No. 30.) That motion was denied. (ECF No. 62.) Neither response
14 was found to provide good cause for extending the time for service on this defendant.
15

At this stage of the proceedings, the Court has no practical option but to

16 recommend Defendant Dedee be dismissed from the action without prejudice. We are
17 now well over a year from the Court’s finding that Plaintiff had a cognizable claim against
18 Defendant Dedee and ordered service.

Plaintiff has provided no additional contact

19 information for Defendant Dedee, and there is nothing to suggest a third attempt to serve
20 her would be any more productive than the first two.
21

Accordingly, the Court hereby RECOMMENDS that Defendant Dedee be

22 dismissed from this action without prejudice pursuant to Federal Rule of Civil Procedure
23 4(m).
24

These Findings and Recommendations are submitted to the United States District

25 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1).
26 Within fourteen (14) days after being served with these Findings and Recommendations,
27 any party may file written objections with the Court and serve a copy on all parties. Such
28 a document should be captioned "Objections to Magistrate Judge's Findings and
Recommendations."

The parties are advised that failure to file objections within the
2

1 specified time may waive the right to appeal the District Court's order. Martinez v. Ylst,
2 951 F.2d 1153 (9th Cir. 1991).
3
4 IT IS SO ORDERED.
5
6

Dated:

April 1, 2014

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

3