Norsworthy v. Cate, et al

Filing 34

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 07/05/11 recommending that this action be dismissed without prejudice pursuant to FRCP 4(m) for failure to effect service of process. All pending motions be denied as moot; and the Clerk of the Court be directed to enter judgment of dismissal and close this file. Referred to Judge Lawrence K. Karlton. Objections due within 14 days. (Plummer, 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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JEFFREY BRYAN NORSWORTHY,

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Plaintiff,

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vs.

Defendant.

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/

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FINDINGS AND RECOMMENDATIONS

RIVERS,

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No. CIV S-09-2989-LKK-CMK-P

Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42
U.S.C. § 1983.
This action proceeds on the amended complaint (Doc. 18), filed on May 21, 2010.

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Rivers is the only defendants named in the amended complaint. On July 23, 2010, the court

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determined that service of the complaint was appropriate and, on August 5, 2008, plaintiff

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submitted the paperwork necessary for service by the United States Marshal. On November 16,

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2010, the United States Marshal was directed to effect service on defendant Rivers. On March

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29, 2011, service of process was returned unexecuted with the following notations: “2-10-11 Per

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facility – resigned in Dec. ‘09" and “3-21-11 Per CDC locator 4 c/o w/ L. name.” On April 14,

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2011, plaintiff was directed to provide the court with additional information in order to serve
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defendant Rivers. Plaintiff was advised that the failure to effect timely service could result in

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dismissal of the action pursuant to Federal Rule of Civil Procedure 4(m). Plaintiff was directed

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to comply within 60 days.

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To date, plaintiff has not provided the court with any additional information.

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Instead, plaintiff has filed two motions: (1) a motion for appointment of counsel for the purpose

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of assisting him in locating defendant Rivers for service; and (2) a motion for judicial

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intervention with respect to locating defendant Rivers. The court finds that it is not appropriate

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to grant either request. Service of process was returned unexecuted because four current or

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former correctional officers with the California Department of Corrections and Rehabilitation

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share the last name “Rivers.” No amount of judicial intervention or professional legal assistance

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from appointed counsel will aid plaintiff in more specifically identifying the person plaintiff

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alleges to have violated his constitutional rights. It is incumbent on plaintiff, who was allegedly

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wronged by a particular correctional officer, to be able to identify who that person was and to

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provide that information in the operative pleading so as to put the correct person on notice that he

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or she is a defendant in this case.

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Based on the foregoing, the undersigned recommends that:

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This action be dismissed without prejudice pursuant to Federal Rule of

Civil Procedure 4(m) for failure to effect timely service of process;

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All pending motions be denied as moot; and

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3.

The Clerk of the Court be directed to enter judgment of dismissal and

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close this file.

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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: July 5, 2011
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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