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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RUDY AROCHA, 12 13 14 15 No. 2:11-cv-2959 MCE KJN P Plaintiff, v. ORDER E. SAUCEDA, et al., Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 19 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On September 18, 2014, the magistrate judge filed findings and recommendations herein 21 which were served on all parties and which contained notice to all parties that any objections to 22 the findings and recommendations were to be filed within fourteen days. Plaintiff has filed 23 objections to the findings and recommendations. 24 On December 13, 2013, the court issued an order noting that service of defendant 25 Montanez had been returned unexecuted. (ECF No. 90.) Because plaintiff recently identified 26 defendant Montanez by a first name, i.e., Robert, on December 13, 2013, the court granted 27 plaintiff thirty days to submit the forms necessary for service of defendant Robert Montanez. 28 (Id.) The September 18, 2014 findings and recommendations recommended that defendant 1 1 Montanez be dismissed based on plaintiff’s failure to return the completed forms for service. 2 (ECF No. 124.) 3 In his objections plaintiff argues, in part, that since December 2013 he has been denied 4 access to his legal property. The court docket indicates that plaintiff did not request an extension 5 of time to return the forms for service of defendant Montanez because of alleged denial of access 6 to legal property. Moreover, the court docket indicates that plaintiff filed several pleadings after 7 December 2013 requesting extensions of time in which he did not allege denial of access to legal 8 property. For example, plaintiff’s March 13, 2014 motion for extension of time did not allege 9 inadequate access to legal property. (ECF No. 108.) 10 11 12 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 13 court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 14 court finds the findings and recommendations to be supported by the record and by proper 15 analysis. 16 Accordingly, IT IS HEREBY ORDERED that: 17 1. The findings and recommendations filed September 18, 2014, are adopted in full; and 18 2. Defendant Montanez is dismissed. 19 Dated: November 6, 2014 20 21 22 23 24 25 26 27 28 2

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