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)

Download PDF
1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEFFREY BRYAN NORSWORTHY, 12 Plaintiff, 13 14 vs. Defendant. 16 / 17 19 FINDINGS AND RECOMMENDATIONS RIVERS, 15 18 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. 20 Rivers is the only defendants named in the amended complaint. On July 23, 2010, the court 21 determined that service of the complaint was appropriate and, on August 5, 2008, plaintiff 22 submitted the paperwork necessary for service by the United States Marshal. On November 16, 23 2010, the United States Marshal was directed to effect service on defendant Rivers. On March 24 29, 2011, service of process was returned unexecuted with the following notations: “2-10-11 Per 25 facility – resigned in Dec. ‘09" and “3-21-11 Per CDC locator 4 c/o w/ L. name.” On April 14, 26 2011, plaintiff was directed to provide the court with additional information in order to serve 1 1 defendant Rivers. Plaintiff was advised that the failure to effect timely service could result in 2 dismissal of the action pursuant to Federal Rule of Civil Procedure 4(m). Plaintiff was directed 3 to comply within 60 days. 4 To date, plaintiff has not provided the court with any additional information. 5 Instead, plaintiff has filed two motions: (1) a motion for appointment of counsel for the purpose 6 of assisting him in locating defendant Rivers for service; and (2) a motion for judicial 7 intervention with respect to locating defendant Rivers. The court finds that it is not appropriate 8 to grant either request. Service of process was returned unexecuted because four current or 9 former correctional officers with the California Department of Corrections and Rehabilitation 10 share the last name “Rivers.” No amount of judicial intervention or professional legal assistance 11 from appointed counsel will aid plaintiff in more specifically identifying the person plaintiff 12 alleges to have violated his constitutional rights. It is incumbent on plaintiff, who was allegedly 13 wronged by a particular correctional officer, to be able to identify who that person was and to 14 provide that information in the operative pleading so as to put the correct person on notice that he 15 or she is a defendant in this case. 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 2 1 Based on the foregoing, the undersigned recommends that: 2 1. 3 This action be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 4(m) for failure to effect timely service of process; 4 2. All pending motions be denied as moot; and 5 3. The Clerk of the Court be directed to enter judgment of dismissal and 6 close this file. 7 These findings and recommendations are submitted to the United States District 8 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 9 after being served with these findings and recommendations, any party may file written 10 objections with the court. Responses to objections shall be filed within 14 days after service of 11 objections. Failure to file objections within the specified time may waive the right to appeal. 12 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 14 15 16 DATED: July 5, 2011 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 3

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?