Ross v. David et al
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 4/21/2011 RECOMMENDING that dft David be dismissed from this action for failure to effect timely service. Referred to Judge Kimberly J. Mueller; Objections due w/in 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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ALEX D. ROSS,
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No. CIV S-09-0984-KJM-CMK-P
Plaintiff,
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vs.
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A. DAVID, et al.,
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FINDINGS AND RECOMMENDATIONS
Defendants.
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Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant
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to 42 U.S.C. § 1983. Service of process directed to defendant David was returned unexecuted on
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September 21, 2009. On February 3, 2011, plaintiff was ordered to promptly seek additional
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information sufficient to effect service on any unserved defendants, and to notify the court once
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such information has been ascertained. Plaintiff has not responded to that order, and no
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additional information regarding service information for defendant David has been submitted.
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Plaintiff was cautioned that failure to effect service may result in the dismissal of unserved
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defendants pursuant to Federal Rule of Civil Procedure 4(m).
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Rule 4(m) provides, in part, that “[i]f 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
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dismiss the action without prejudice against that defendant or order that service may be made
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within a specified time.” Fed. R. Civ. Proc. 4(m). Here, plaintiff’s complaint was filed on April
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13, 2009. Service was authorized on May 6, 2009, and the United States Marshal was directed to
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complete service on June 1, 2009. Service as to defendant David was returned unexecuted on
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September 21, 2009. Thus, more than 120 days have passed since the filing of the complaint, as
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well as the attempted service of defendant David. Plaintiff has not provided any additional
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information for which the United States Marshal to attempt additional service on defendant
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David.
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Accordingly, the undersigned finds it appropriate to dismiss the unserved
defendant from this action, pursuant to Rule 4(m).
Based on the foregoing, the undersigned recommends that defendant David be
dismissed from this action for failure to effect timely service.
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These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 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. Responses to objections shall be filed within 14 days after service of
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objections. Failure to file objections within the specified time may waive the right to appeal.
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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: April 21, 2011
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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