Barnes vs W. Yand, et al

Filing 26

AMENDED ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING ACTION 22 , signed by District Judge Dale A. Drozd on 1/7/2021.(Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTOINE DESHAWN BARNES, 12 No. 1:20-cv-00389-DAD-SAB Plaintiff, 13 v. 14 W. YAND, et al., 15 AMENDED ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING ACTION Defendants. (Doc. No. 22) 16 17 Plaintiff Antoine Deshawn Barnes is a county jail inmate proceeding pro se and in forma 18 19 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a 20 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On June 10, 2020, the assigned magistrate judge issued an order finding service of the 21 22 complaint appropriate as to defendant W. Yand. (Doc. No. 12.) Plaintiff returned service 23 documents which were forwarded to the United States Marshal on June 23, 2020 to effect service 24 of process. (Doc. No. 15.) On September 9, 2020, the United States Marshal returned the 25 summons unexecuted. (Doc. No. 18.) The magistrate judge subsequently issued an order 26 requiring plaintiff to provide further information identifying defendant Yand so that service could 27 be effected. (Doc. Nos. 19.) Plaintiff received an extension of time to respond, but has still filed 28 ///// 1 1 no further information in response to that order and the time to do so, as extended, has passed. 2 (Doc. No. 20.) 3 Accordingly, on December 10, 2020, the assigned magistrate judge issued findings and 4 recommendations, recommending that this action be dismissed due to plaintiff’s failure to serve 5 defendant Yand in compliance with Rule 4(m) of the Federal Rules of Civil Procedure and failure 6 to comply with a court order. (Doc. No. 22 at 6.) The findings and recommendations were 7 served on plaintiff and contained notice that objections thereto were to be filed within fourteen 8 (14) days after service. (Id.)1 Plaintiff untimely filed objections on January 5, 2021. (Doc. No. 9 25.) Out of an abundance of caution, the undersigned has reviewed plaintiff’s untimely 10 11 objections. Plaintiff’s objections largely do not address the magistrate judge’s reasoning in 12 finding that plaintiff had failed to provide sufficient information to have the defendant served in 13 compliance with Rule 4(m), except to assert that “this court knows who this man [defendant W. 14 Yand] is who clearly violated my 4th [A]mendment rights so thr[ough] prayer I hope this court 15 can help me seek justice.” (Id. at 7.) The remainder of plaintiff’s objections for the most part 16 address the merits of his claims and alleges that his current conditions of confinement violate his 17 federal rights. (See Doc. No. 25.) However, plaintiff does not address his failure to comply with 18 the court’s order requiring him to provide additional information so that the named defendant can 19 be served. (See id.) 20 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a 21 de novo review of this case. Having carefully reviewed the entire file, the court finds the findings 22 and recommendations to be supported by the record and by proper analysis. 23 ///// 24 ///// 25 ///// 26 1 27 28 The court’s initial order stated that no objections had been timely filed at that time. (Doc. No. 23 at 2.) After the court’s order was docketed, plaintiff’s objections to the findings and recommendations were filed. (Doc. No. 25.) The court issues this amended order in order to address plaintiff’s late-filed objections. 2 1 Accordingly, 2 1. 3 4 are adopted in full; 2. 5 6 7 8 The findings and recommendations issued on December 10, 2020 (Doc. No. 22) This action is dismissed for failure to serve in compliance with Rule 4(m) of the Federal Rules of Civil Procedure and failure to comply with a court order; and 3. The Clerk of the Court is directed to close this case. IT IS SO ORDERED. Dated: January 7, 2021 UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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