Jones v. Swingle et al

Filing 94

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 3/7/13 ORDERING that defendants Swingle, Medina, Barker, Luther, Harper, and Lankford respond to plaintiffs allegations in accordance with Rule 12(a)(1) of the Federal Rules of Civil Procedure. It is RECOMMENDED that defendant Burgett be dismissed without prejudice. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 days.(Dillon, M)

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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.

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No. 2:09-cv-0619 GEB EFB P

D. SWINGLE, et al.,
ORDER AND
FINDINGS AND RECOMMENDATIONS

Defendants.

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/

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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. Plaintiff has made two attempts at providing information

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for service of process on defendant Burgett, but the U.S. Marshal has been unable to serve

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defendant Burgett based on the information provided. Dckt. No. 77, 87, 93. Because plaintiff

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has been unable to locate defendant Burgett, and to avoid further delay in this action, defendant

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Burgett must be dismissed, and the remaining defendants must respond to the complaint as

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narrowed by the court’s February 10, 2012 Screening Order. See Fed. R. Civ. P. 4(m) (service of

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process must be effected within 120 days of the filing of the complaint unless plaintiff

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demonstrates good cause); Fed. R. Civ. P. 12(a)(1).

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Accordingly, it is hereby ORDERED that defendants Swingle, Medina, Barker, Luther,

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Harper, and Lankford respond to plaintiff’s allegations in accordance with Rule 12(a)(1) of the

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Federal Rules of Civil Procedure.

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Further, 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: March 7, 2013.

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