Adams v. Easley et al

Filing 42

FINDINGS and RECOMMENDATIONS, recommending that action be dismissed, signed by Magistrate Judge Carolyn K. Delaney on 10/4/2011. These F/Rs are referred to Judge Garland E. Burrell, Jr.. Within 14 days after being with these F/Rs, any party may file written Objections with Court and serve a copy on all parties. (Marciel, 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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TYRONE ADAMS,

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Plaintiff,

No. CIV S-11-0826 GEB CKD PS

vs.
CHARLES EASLEY, et al.,
Defendants.

FINDINGS & RECOMMENDATIONS
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This action was referred to the undersigned pursuant to Local Rule 302(c)(21).

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As provided by Federal Rule of Civil Procedure 4(m), the court may dismiss an action where

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service of summons is not made within 120 days after the filing of the complaint. In the order

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setting status conference, filed March 29, 2011, plaintiff was cautioned that this action may be

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dismissed if service was not timely completed. This action was filed March 25, 2011 and

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plaintiff has not yet served all of the defendants with summons.

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In the order filed May 26, 2011 after hearing on defendant Waggoman’s motion to

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dismiss, the court again cautioned plaintiff that defendants must be timely served with summons.

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In the order filed September 1, 2011 after hearing on the motions to dismiss brought by

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defendant Waggoman and the Sutter defendants, the court noted that plaintiff had submitted no

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competent evidence regarding any alleged attempts to serve the nonappearing defendants. The
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court granted plaintiff an extension of time until September 30, 2011 to complete service of

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summons in compliance with Federal Rule of Civil Procedure 4. This action has now been

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pending over six months. The record reflects that the nonappearing defendants have not been

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properly served despite the court’s repeated admonitions and plaintiff being afforded additional

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time to complete service of process.

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Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed.

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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 fourteen

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days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Findings and Recommendations.” Any reply to the objections shall be served and

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filed within ten days after service of the objections. The parties are advised that failure to file

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objections within the specified time may waive the right to appeal the District Court's order.

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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: October 4, 2011

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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adams.4m.57

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