Benyamini v. Hommer et al

Filing 59

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 8/6/2014 RECOMMENDING that defendants Juan, Lopez, Reid and Anderson be dismissed without prejudice. Referred to Judge Troy L. Nunley; Objections due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT BENYAMINI,

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No. 2:11-cv-02317 TLN AC P

Plaintiff,

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v.

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O’BRIAN, et al.,

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FINDINGS & RECOMMENDATIONS

Defendants.

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Plaintiff, who is proceeding pro se and in forma pauperis, seeks relief pursuant to 42

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U.S.C. § 1983.

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I.

Background

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On June 27, 2014 this court issued an order to show cause requiring plaintiff to

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demonstrate why defendants Juan, Lopez, Reid, and Anderson should not be dismissed without

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prejudice for failure to timely effect service of process and failure to follow court orders. ECF

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No. 55. Plaintiff filed a response on July 17, 2014. ECF No. 57. In the response plaintiff focuses

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on the liability of these defendants for the civil rights violations alleged in his complaint, but he

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completely fails to describe what efforts he has made to locate further identifying information

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such as the first initials or badge numbers of these defendants. ECF No. 57 at 1-2. Plaintiff also

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alleges that the “CDCR is not telling the truth about the whereabouts of the defendants in

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question on the day in question.” Id. at 2.
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II.

Analysis
Service of process must be completed within 120 days after the filing date of the

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complaint. Fed. R. Civ. P. 4(m). If plaintiff fails to timely effect service of process, the court may

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either dismiss the action without prejudice as to that defendant or direct such service to be

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effected within a specified time. Id. If the plaintiff shows good cause for the failure, the court

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must extend the time for service. Id. Absent a showing of good cause, it is within the court's

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discretion whether or not to extend time or dismiss the action without prejudice. United States v.

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2,164 Watches, 366 F.3d 767, 772 (9th Cir. 2004).

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Here, plaintiff has failed to demonstrate good cause for the failure to effect service of

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process. The amended complaint in this action was filed on February 15, 2013. The 120 day

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time period in which to affect service of process has long since passed. While plaintiff generally

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complains about a cover-up by the CDCR, the court notes that plaintiff has not even provided a

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first initial for any of these defendants. With such common surnames as Anderson and Lopez, the

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lack of further identifying information does not render the CDCR’s failure to locate these

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defendants, absent further information from plaintiff, altogether surprising. Nowhere does

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plaintiff allege that with additional time he will be able to locate further identifying information

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as to each defendant. Nor has he requested any additional time to do so. As a result, plaintiff has

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failed to demonstrate good cause why the court should grant him additional time to effect service

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of process on these defendants. Therefore, the undersigned finds that dismissal without prejudice

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is warranted in the present case.

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Accordingly, IT IS HEREBY RECOMMENDED that defendants Juan, Lopez, Reid, and
Anderson 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.” Any response to the

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objections shall be served and filed within fourteen days after service of the objections. The
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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: August 6, 2014

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