Shehee v. Perez et al

Filing 63

ORDER Striking Untimely Objections to Magistrate Judge's Findings and Recommendations signed by District Judge Anthony W. Ishii on 04/04/2019. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GREGORY ELL SHEHEE,

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Plaintiff,

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v.
PEREZ,

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Case No. 1:16-cv-01346-AWI-BAM (PC)
ORDER STRIKING UNTIMELY
OBJECTIONS TO MAGISTRATE JUDGE’S
FINDINGS AND RECOMMENDATIONS
(ECF No. 62)

Defendant.

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Plaintiff Gregory Ell Shehee (“Plaintiff”) is a former civil detainee proceeding pro se in

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this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s first

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amended complaint against Defendant Perez for excessive force in violation of the Fourteenth

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Amendment.

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On January 9, 2019, the assigned Magistrate Judge issued findings and recommendations

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recommending dismissal of Defendant Lain from this action, without prejudice, due to Plaintiff’s

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failure to provide the United States Marshal with sufficient information to serve process under

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Federal Rule of Civil Procedure 4(m). (ECF No. 59.) The findings and recommendation gave

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Plaintiff fourteen days in which to file objections. See id. Plaintiff did not file objections, and the

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Court adopted the findings and recommendations in full on February 26, 2019. (ECF No. 60.)
On April 1, 2019, Plaintiff filed untimely objections to the findings and recommendations,

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filed April 1, 2019. (ECF No. 62.) Plaintiff argues that if the Marshal was able to serve

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Defendant Perez, they should have been able to also serve Defendant Lain, as they worked in the

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same unit for the Department of State Hospitals on the date of the incident at issue in this action.

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(Id.)
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As outlined above, the time for Plaintiff to file objections was January 2019, not March or
April 2019. Plaintiff’s objections are extremely late and as such, will be stricken.
However, even if the Court did not strike the objections, they do not warrant a different

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result or the vacation of the order adopting the findings and recommendation. As discussed in the

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findings and recommendations, Plaintiff was granted multiple opportunities to provide sufficient

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information to identify Defendant Lain. (ECF No. 59.) In addition, the Marshal twice attempted

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to serve Defendant Lain based on the information provided by Plaintiff, but was unable to locate

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any employee by the name of Jerri Lady, Jerri Lain, or Jirri Lan. (ECF Nos. 50, 52.) Plaintiff

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was then afforded a further opportunity to show cause why Defendant Lain should not be

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dismissed from this action, and Plaintiff failed to respond. (ECF No. 54.) Plaintiff’s untimely

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objections provide no new information that might assist the Marshal in identifying Defendant

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Lain for service of process.

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Accordingly, IT IS HEREBY ORDERED that Plaintiff’s objections (ECF No. 62) are
STRICKEN as untimely.

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IT IS SO ORDERED.
Dated: April 4, 2019
SENIOR DISTRICT JUDGE

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