Jones v. Swingle et al

Filing 85

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 11/9/2012 RECOMMENDING that defendant Burgett be dismissed without prejudice. Referred to Judge Garland E. Burrell, Jr.; Objections due within 14 days. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MALIK JONES,
Plaintiff,

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vs.
D. SWINGLE, et al.,
Defendants.

FINDINGS AND RECOMMENDATIONS
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No. 2:09-cv-0619 GEB EFB P

Plaintiff is a prisoner proceeding in forma pauperis and without counsel in a civil rights

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action pursuant to 42 U.S.C. § 1983. The U.S. Marshal was unable to serve defendant Burgett

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with process was because defendant Burgett could not be located based on the information

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provided by plaintiff. On October 17, 2012, the court directed plaintiff to provide new

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instructions for service of process upon defendant Burgett. Plaintiff has not provided new

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instructions for service of process upon defendant Burgett or otherwise responded to the court’s

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order. The court has given plaintiff two opportunities to locate defendant Burgett and warned

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plaintiff that failure to provide new instructions or to show good cause for such failure would

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result in a recommendation that this action be dismissed as to that defendant. See Fed. R. Civ. P.

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4(m) (service of process must be effected within 120 days of the filing of the complaint unless

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plaintiff demonstrates good cause).
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Accordingly, it is hereby RECOMMENDED that defendant Burgett be dismissed without
prejudice.

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These findings and recommendations are submitted to the United States District Judge

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

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: November 19, 2012.

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