Butler v. Wern, et al.

Filing 37

FINDINGS and RECOMMENDATIONS recommending that Defendant Wern be DISMISSED without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure ;re 1 Complaint ; referred to Judge O'Neill,signed by Magistrate Judge Stanley A. Boone on 06/223/2015. Objections to F&R due by 7/27/2015 (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARQUES BUTLER,

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Plaintiff,

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v.

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R. WERN, et al.,

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Defendants.

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Case No.: 1:12-cv-01538-LJO-SAB (PC)
FINDINGS AND RECOMMENDATION
RECOMMENDING DEFENDANT WERN BE
DISMISSED FROM ACTION WITHOUT
PREJUDICE
[ECF Nos. 28, 33, 34]

Plaintiff Marques Butler is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.

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On April 24, 2015, the Court issued an order to show cause why Defendant Wern should not

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be dismissed pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. As stated in the order to

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show cause, the Marshal forwarded the service packet to California State Prison, in Coalinga,

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California, which was sent to the special investigator who was unable to identify or locate Defendant

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R. Wern. Personal serve was attempted on November 5, 2014, and November 25, 2014, however, it

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was noted “new tenants” and there was no forwarding address. (ECF No. 28.)

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In response to the order to show cause, Plaintiff submits that because of his incarceration he

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does not have access a phone directory to ascertain Defendant Wern’s address and had to rely on the

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United States marshal. (ECF No. 34.)

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Where a pro se plaintiff fails to provide the Marshal with accurate and sufficient information to

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effect service of the summons and complaint, the Court’s sua sponte dismissal of the unserved

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defendants is appropriate. Walker v. Sumner, 14 F.3d 1415, 1421-1422 (9th Cir. 1994), abrogated in

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part on other grounds, Sandin v. Conner, 515 U.S. 472 (1995).
While Plaintiff is entitled to service of process by the United States marshal, it is the

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responsibility of Plaintiff to provide sufficient information for service as to Defendant Wern. Plaintiff

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has failed to do so and dismissal of Defendant Wern without prejudice is therefore warranted. Fed. R.

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Civ. P. 4(m); Walker v. Sumner, 14 F.3d at 1422.
Accordingly, it is HEREBY RECOMMENDED that Defendant Wern be dismissed without

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prejudice pursuant to Rule 4(m) of the Federal Rules of Civil 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, the parties may file written objections

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with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendation.” The parties are 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)).

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IT IS SO ORDERED.

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Dated:

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June 23, 2015
UNITED STATES MAGISTRATE JUDGE

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