Gastile v. Virga et al

Filing 31

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 7/17/2013 RECOMMENDING that defendants Day and Washington be dismissed without prejudice. Referred to Judge John A. Mendez; 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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TIMOTHY L. GASTILE,

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No. 2:11-cv-2829-JAM-EFB P

Plaintiff,

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v.

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T. VIRGA, et al.,

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FINDINGS AND RECOMMENDATIONS

Defendants.

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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. Despite two attempts, the U.S. Marshal was unable to effect service of process on

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defendants Day or Washington based upon the information provided by plaintiff. ECF Nos. 16,

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29. The court has given plaintiff two opportunities to locate defendants Day and Washington and

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warned plaintiff that failure to provide new instructions or to show good cause for such failure

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would result in a recommendation that these defendants be dismissed. ECF Nos. 7, 17; see also

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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). The time for serving defendants has passed

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and plaintiff has failed to demonstrate the requisite good cause. See ECF No. 18.

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Accordingly, it is hereby RECOMMENDED that defendants Day and Washington 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: July 17, 2013.

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