Nuriddin v. Estrella et al

Filing 32

FINDINGS and RECOMMENDATION Recommending Dismissal of Defendant Miller Pursuant to Rule 4(M) of the Federal Rules of Civil Procedure 19 , 23 , 26 , signed by Magistrate Judge Stanley A. Boone on 1/13/15: Thirty-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MUHAMMAD NURIDDIN,

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Plaintiff,
v.
ESTRELLA, et al.,
Defendants.

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Case No.: 1:11-cv-01448-LJO-SAB (PC)
FINDINGS AND RECOMMENDATION
RECOMMENDING DISMISSAL OF
DEFENDANT MILLER PURSUANT TO RULE
4(M) OF THE FEDERAL RULES OF CIVIL
PROCEDURE
[ECF Nos. 19, 23, 26]

Plaintiff Muhammad Nuriddin is appearing pro se and in forma pauperis in this civil rights

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action pursuant to Bivens v. Six Unknown Agents, 403 U.S. 388 (1971). Bivens actions and actions

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under 42 U.S.C. § 1983 “are identical save for the replacement of a state actor under § 1983 by a

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federal actor under Bivens.” Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991).

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I.

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DISCUSSION

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On October 1, 2014, the Court issued an order to show cause why Defendants Miller and Bell

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should not be dismissed pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. (ECF No. 23.)

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Plaintiff filed a response on October 23, 2014. (ECF No. 26.)

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On August 8, 2014, personal service on Defendant Miller was attempted but not successful.

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The last known address provided by the prison is no longer accurate and personal service has not been

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successful. (ECF No. 21.)
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In his response to the order to show cause, Plaintiff indicates that the last known address for

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Defendant Miller was the United States Penitentiary in Atwater, California, where he was working as

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a Lieutenant. Plaintiff contends he is not allowed information relating to the address and/or telephone

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numbers of any staff members.
Plaintiff fails to provide good cause as to why Defendant Miller should not be dismissed, as

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Plaintiff does not specify any alternatives to effectuate service on Defendant Miller. Nothing in

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Plaintiff’s response to the order to show cause suggests Plaintiff can provide any further information

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relevant to effectuating service upon Defendant Miller. Accordingly, Plaintiff fails to show good

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cause to extend the time for serving Defendant Miller, and dismissal of Defendant Miller, without

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prejudice, is appropriate.

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II.

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RECOMMENDATION
Based on the foregoing, IT IS HEREBY RECOMMENDED that Defendant Miller be

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dismissed from the action, without prejudice, pursuant to Rule 4(m) of the Federal Rules of Civil

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Procedure.

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This Findings and Recommendation will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days

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after being served with this Findings and Recommendation, Plaintiff may file written objections with

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the Court.

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Recommendation.” Plaintiff is advised that failure to file objections within the specified time may

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result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014)

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(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

The document should be captioned “Objections to Magistrate Judge’s Findings and

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IT IS SO ORDERED.

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Dated:

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January 13, 2015
UNITED STATES MAGISTRATE JUDGE

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