Norwood v Nanganama, et al.,
Filing
53
ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 04/14/11 ORDERING that within 28 days of service of this order, plaintiff may file an amended complaint as discussed in the 11/18/10 order and findings and recommendations. Also, RECOMMENDING that defendants Kaur and Salmi be dismissed from this action pursuant to FRCP 4(m). Referred to Judge Lawrence K. Karlton. Objections due within 14 days. (Plummer, M)
1
2
3
4
5
6
7
8
IN THE UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
GREGORY NORWOOD,
11
12
13
14
15
16
Plaintiff,
No. CIV S-09-2929 LKK GGH P
vs.
NANGANAMA, et al.,
Defendants.
ORDER &
FINDINGS AND RECOMMENDATIONS
/
Plaintiff is a prisoner who is proceeding pro se and in forma pauperis. Plaintiff
17
seeks relief pursuant to 42 U.S.C. § 1983. On November, 17, 2009, the undersigned deemed
18
service appropriate for defendants Nanganama, Ramen, Byers, Salmi and Kaur.
19
Defendants Nanganama and Raman were served and their motion to dismiss was
20
granted on January 11, 2011, in that Nanganama was dismissed from this action, but plaintiff
21
would be allowed to file an amended complaint with respect to defendant Ramen. The
22
undersigned stated that plaintiff should file an amended complaint once service problems with
23
the remaining defendants had been resolved.
24
With respect to the three remaining defendants, Byers, Salmi and Kaur, service
25
was not effectuated, as the waiver of service was returned unexecuted, on February 10, 2010.
26
Doc. 15. Salmi and Byers were not employed at the facility plaintiff indicated and could not be
1
1
located in the CDCR database. Kaur was not located at the facility plaintiff indicated and the
2
CDCR database listed too many entries with that name.
3
On May 19, 2010, the undersigned sent plaintiff new forms with respect for
4
service on Byers, Salmi and Kaur and to return the forms to the court within 60 days with
5
additional information on how to serve these defendants. On July 21, 2010, plaintiff requested
6
an extension of time to return the forms to the court as he was still attempting to ascertain the
7
addresses for these defendants. Plaintiff’s request was granted Doc. 33. On August 5, 2010,
8
plaintiff requested court intervention to obtain the relevant information regarding information
9
needed to serve defendants. On September 21, 2010, the undersigned granted plaintiff’s request,
10
and on October 15, 2010, last known business addresses were provided to plaintiff regarding
11
defendants Byers, Salmi and Kaur.
12
On October 21, 2010, new forms were provided to plaintiff to be completed and
13
returned to the court for service on defendants Byers, Salmi and Kaur and on November 1, 2010,
14
the undersigned ordered service of these defendants. Byers was served and answered the
15
complaint on February 7, 2011. However, Kaur could not be located (Doc. 50) nor could Salmi
16
(Doc. 52).
17
Pursuant to Federal Rule of Civil Procedure 4(m), if a defendant is not served
18
within 120 days of filing the complaint, the court may dismiss the complaint without prejudice as
19
to that defendant. Based on this history discussed above and that several service attempts have
20
been made over the last 18 months, it is pointless to continue to attempt to serve Kaur and Salmi.
21
Plaintiff has been afforded every opportunity to obtain information regarding these defendants,
22
but all attempts at service have proved unsuccessful and it is time for this litigation to continue.
23
As stated above, plaintiff’s claims against defendant Ramen were dismissed with
24
leave to amend. Doc. 45. Within twenty-eight days of service of this order, plaintiff may file an
25
amended complaint as discussed in the November 18, 2010, order and findings and
26
recommendations. Failure to file an amended complaint will result in a recommendation that
2
1
defendant Ramen be dismissed from this action.
2
Accordingly, IT IS HEREBY ORDERED that within twenty-eight days of service
3
of this order, plaintiff may file an amended complaint as discussed in the November 18, 2010,
4
order and findings and recommendations. Failure to file an amended complaint will result in a
5
recommendation that defendant Ramen be dismissed from this action. Plaintiff should include
6
his present allegations against defendant Byers in the amended complaint. If no further
7
allegations are made against defendant Byers, this defendant may choose to stand on his present
8
answer, and that answer will be deemed responsive to the amended complaint.
9
10
IT IS HEREBY RECOMMENDED that defendants Kaur and Salmi be dismissed
from this action pursuant to Federal Rule of Civil Procedure 4(m).
11
These findings and recommendations are submitted to the United States District
12
Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen
13
days after being served with these findings and recommendations, any party may file written
14
objections with the court and serve a copy on all parties. Such a document should be captioned
15
“Objections to Magistrate Judge's Findings and Recommendations.” Any reply to the objections
16
shall be served and filed within fourteen days after service of the objections. The parties are
17
advised that failure to file objections within the specified time may waive the right to appeal the
18
District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
19
DATED: April 14, 2011
20
/s/ Gregory G. Hollows
21
GREGORY G. HOLLOWS
UNITED STATES MAGISTRATE JUDGE
22
23
GGH: AB
norw2929.ord4
24
25
26
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?