Payne v. Martin et al

Filing 37

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 12/19/12 RECOMMENDING that defendant Martin be dismissed without prejudice. Referred to Judge Lawrence K. Karlton; Objections to F&R due within 14 days.(Dillon, 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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LEE THIEL PAYNE,
Plaintiff,

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vs.

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No. 2:11-cv-1970 LKK EFB P

J. MARTIN, et al.,
Defendants.

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FINDINGS AND RECOMMENDATIONS
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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. The U.S. Marshal was unable to effect service of process on defendant Martin

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based on the information provided by plaintiff. Therefore, on October 17, 2012, the court

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directed plaintiff to provide new instructions for service. Plaintiff has not provided new

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instructions or otherwise responded to the court’s order. The court has given plaintiff two

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opportunities to locate defendant Martin and warned plaintiff that failure to provide new

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instructions or to show good cause for such failure would result in a recommendation that this

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action be dismissed as to defendant Martin. See Fed. R. Civ. P. 4(m) (service of process must be

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effected within 120 days of the filing of the complaint unless plaintiff demonstrates good cause).

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Accordingly, it is hereby RECOMMENDED that defendant Martin 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: December 19, 2012.

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