Cottrell v. Ogbuehi et al

Filing 102

ORDER signed by Chief Judge Lawrence J. O'Neill on 3/20/2017 re 78 , 85 , 86 , 87 , 88 , 89 , 90 , 91 , 92 , 96 , 99 , 100 , 101 . (Lundstrom, T)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 DALE L. COTTRELL, 10 Plaintiff, 11 Case No. 1:13-cv-01530-LJO-SAB (PC) ORDER (ECF Nos. 78, 85-92, 96, 99, 100, 101) v. 12 FELIX IGBINOSA, et al., 13 Defendants. 14 15 Plaintiff Dale L. Cottrell is appearing pro se and in forma pauperis in this civil rights 16 action pursuant to 42 U.S.C. § 1983. Defendants filed a motion for summary judgment on July 17 25, 2016, which was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 18 636(b)(1)(B) and Local Rule 302. 19 On February 8, 2017, an order issued requiring Plaintiff to show cause why Doe 20 defendants 1 through 3 should not be dismissed from this action. On February 9, 2017, the 21 Magistrate Judge filed a findings and recommendations. The findings and recommendations 22 recommended granting in part and denying in part Defendants’ motion for summary judgment. 23 The findings and recommendations was served on the parties and contained notice that any 24 objections to the findings and recommendations were to be filed within thirty days from the date 25 of service. Plaintiff filed objections to the findings and recommendations on March 16, 2017. 26 Plaintiff did not respond to the order to show cause. 27 At the time that the complaint in this action was filed, Rule 4(m) of the Federal Rules of 28 Civil Procedure provided, in relevant part: 1 1 2 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 Plaintiff has failed to set forth good cause for his failure to identify the Doe defendants so 6 that the United States Marshal could serve a summons and the complaint. Therefore, the Doe 7 defendants are dismissed from this action for Plaintiff’s failure to effect service of process in 8 compliance with Rule 4(m). 9 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted 10 a de novo review of this case. Having carefully reviewed the entire file, the Court finds the 11 findings and recommendations to be supported by the record and by proper analysis. 12 Accordingly, IT IS HEREBY ORDERED that: 13 1. 14 without prejudice, pursuant to Federal Rule of Civil Procedure 4(m); 15 2. The findings and recommendations, filed February 9, 2017, is ADOPTED IN FULL; 16 17 Doe Defendants 1 through 3 are DISMISSED from this action, 3. Defendants’ motion for summary judgment is GRANTED IN PART AND 18 DENIED IN PART as follows: 19 a. Defendants Das, Duenas, Igbinosa, Ogbuehi, and Park’s motion for summary judgment is GRANTED; and 20 b. 21 Defendants Lackey and Berard’s motion for summary judgment is DENIED. 22 23 IT IS SO ORDERED. 24 25 Dated: /s/ Lawrence J. O’Neill _____ March 20, 2017 UNITED STATES CHIEF DISTRICT JUDGE 26 27 28 2

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