Arocha v. Sauceda et al

Filing 128

ORDER adopting in full 124 FINDINGS AND RECOMMENDATIONS, signed by Chief Judge Morrison C. England, Jr., on 11/6/14. Defendant Montanez is DISMISSED. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RUDY AROCHA,

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No. 2:11-cv-2959 MCE KJN P

Plaintiff,
v.

ORDER

E. SAUCEDA, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief

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under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to

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28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On September 18, 2014, the magistrate judge filed findings and recommendations herein

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which were served on all parties and which contained notice to all parties that any objections to

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the findings and recommendations were to be filed within fourteen days. Plaintiff has filed

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objections to the findings and recommendations.

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On December 13, 2013, the court issued an order noting that service of defendant

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Montanez had been returned unexecuted. (ECF No. 90.) Because plaintiff recently identified

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defendant Montanez by a first name, i.e., Robert, on December 13, 2013, the court granted

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plaintiff thirty days to submit the forms necessary for service of defendant Robert Montanez.

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(Id.) The September 18, 2014 findings and recommendations recommended that defendant
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Montanez be dismissed based on plaintiff’s failure to return the completed forms for service.

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(ECF No. 124.)

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In his objections plaintiff argues, in part, that since December 2013 he has been denied

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access to his legal property. The court docket indicates that plaintiff did not request an extension

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of time to return the forms for service of defendant Montanez because of alleged denial of access

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to legal property. Moreover, the court docket indicates that plaintiff filed several pleadings after

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December 2013 requesting extensions of time in which he did not allege denial of access to legal

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property. For example, plaintiff’s March 13, 2014 motion for extension of time did not allege

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inadequate access to legal property. (ECF No. 108.)

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Plaintiff has not demonstrated good cause for his failure to complete and return the forms
necessary for service of defendant Montanez within the time ordered.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

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court has conducted a de novo review of this case. Having carefully reviewed the entire file, the

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court finds the findings and recommendations to be supported by the record and by proper

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analysis.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed September 18, 2014, are adopted in full; and

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2. Defendant Montanez is dismissed.

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Dated: November 6, 2014

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