Develder v. Hirshler et al

Filing 18

ORDER signed by Magistrate Judge Edmund F. Brennan on 2/27/12 ORDERING that plaintiff shall, within 30 days of the date of this order, file an appropriate motion based on the Federal Rules of Civil Procedure and indicate how, or if, he intends to proceed with this lawsuit. (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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MICHAEL DEVELDER,
Plaintiff,

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vs.
J. HIRSHLER, et al.,
Defendants.

ORDER
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No. CIV S-09-1803 EFB P

Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in an action

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brought under 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302

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pursuant to 28 U.S.C. § 636(b)(1) and is before the undersigned pursuant to plaintiff’s consent.

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See 28 U.S.C. § 636; see also E.D. Cal. Local Rules, Appx. A, at (k)(4).

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On August 10, 2010, the court screened plaintiff’s April 12, 2010 amended complaint,

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and found that service was appropriate for defendants Hirshler and Housley (“defendants”).

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Dckt. Nos. 9, 10. On September 10, 2010, the court ordered service of the amended complaint

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on the defendants. Dckt. No. 12.

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On October 6, 2010, the United States Marshal returned service of process directed to

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defendant Housley unserved, with a notation that Housley is not employed at Mule Creek State

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Prison and his name could not be found in the CDC locator database. Dckt. No. 14.
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Accordingly, on October 18, 2010, the court gave plaintiff sixty days to provide new information

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about where defendant Housley could be served and after giving plaintiff an admonition

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regarding Rule 4(m), informed plaintiff that failure to provide further information to allow

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service on defendant Housley would result in Housley being dismissed. The sixty-day period

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expired and plaintiff did not respond to the court’s order. Accordingly, the court dismissed

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defendant Housley and ordered that this action would proceed only as to plaintiff’s claims

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against defendant Hirshler. Dckt. No. 16.

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On April 13, 2011, the United States Marshal returned the form USM-285/Process

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Receipt and Return indicating that defendant Hirshler had been served. Dckt. No. 17. Hirshler

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has not appeared or otherwise responded to plaintiff’s complaint. Failure to answer or otherwise

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file a proper response to a complaint within the time required is grounds for the entry of default

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under Rule 55(a) of the Federal Rules of Civil Procedure.

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Plaintiff has not filed anything with the court since he submitted documents for service of

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process on August 24, 2010. Dckt. No. 11. If plaintiff no longer wishes to pursue this action, he

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may voluntarily dismiss it without prejudice by filing a notice of dismissal in accordance with

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Rule 41(a)(1)(A) of the Federal Rules of Civil Procedure.

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Accordingly, IT IS HEREBY ORDERED that plaintiff shall, within 30 days of the date

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of this order, file an appropriate motion based on the Federal Rules of Civil Procedure and

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indicate how, or if, he intends to proceed with this lawsuit. Failure to comply with this order

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will result in this action being dismissed for failure to prosecute. See Fed. R. Civ. P. 41(b).

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Dated: February 27, 2012.

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