Thomas v. Antipov et al

Filing 67

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 2/26/2013 RECOMMENDING that defendant Ma be dismissed without prejudice. Referred to Judge Morrison C. England, Jr.; Objections due within 14 days. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMAAL THOMAS,
Plaintiff,

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vs.

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No. 2:11-cv-1138 MCE EFB P

ANTIPOV, et al.,

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Defendants.

FINDINGS AND RECOMMENDATIONS
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Plaintiff is a prisoner proceeding in forma pauperis and without counsel in a civil rights

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action pursuant to 42 U.S.C. § 1983. The U.S. Marshal was unable to serve defendant “Dr. John

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Ma” with process was because defendant Ma could not be located based on the information

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provided by plaintiff. See Dckt. No. 55. On October 17, 2012, the court directed plaintiff to

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provide new instructions for service of process. On February 12, 2013, plaintiff informed the

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court that he had obtained new information about where defendant Ma could be served with

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process. See Dckt. No. 64. However, plaintiff has not actually provided new information.

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Rather, plaintiff requests that the U.S. Marshal attempt service using the same inadequate

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information that was relied upon in the initial attempt to serve defendant Ma. See Dckt. Nos. 55,

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64 at 4, ¶ 3. The court will not direct the U.S. Marshal to attempt serving defendant Ma based on

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the same, insufficient instructions. Plaintiff has had ample time to locate defendant Ma for
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service, and has been warned that failure to provide new instructions or to show good cause for

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such failure would result in a recommendation that this action be dismissed as to defendant Ma.

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See Fed. R. Civ. P. 4(m) (service of process must be effected within 120 days of the filing of the

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complaint unless plaintiff demonstrates good cause).

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Accordingly, it is hereby RECOMMENDED that defendant Ma be dismissed without
prejudice.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 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 and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: February 26, 2013.

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