Arocha v. Sauceda et al

Filing 83

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 11/08/13 ORDERING the clerk of the court shall assign a District Judge to this action. U.S. District Judge Lawrence K. Karlton randomly assined to this action. Also, RECOMMENDING that defendants Munoz and Montanez be dismissed. Referred to Judge Lawrence K. Karlton. Objections due within 14 days. (Plummer, M)

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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 KJN P Plaintiff, v. ORDER and E. SAUCEDA, et al., FINDINGS AND RECOMMENDATIONS Defendant. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. For the following reasons, the undersigned recommends that defendants 19 Munoz and Montanez be dismissed. 20 On June 11, 2013, the court ordered service of defendants Munoz and Montanez. (ECF 21 No. 50.) On June 25, 2013, service as to defendants Munoz and Montanez was returned 22 unexecuted because they could not be located in the “CDCR” locator. (ECF No. 53.) On July 5, 23 2013, the court granted plaintiff sixty days to provide additional information for service of these 24 defendants. (ECF No. 54.) 25 On September 6, 2013, plaintiff filed a motion to compel requesting that defendants be 26 ordered to provide him with information regarding the location of defendants Munoz and 27 Montanez. (ECF No. 73.) In their opposition to this motion, defendants argued that the 28 information plaintiff sought did not exist, as demonstrated by a letter from the Mule Creek State 1 1 Prison (“MCSP”) Litigation Coordinator attached to plaintiff’s motion to compel. (ECF No. 77.) 2 This letter, dated August 8, 2013, states that MCSP does not have a record of either employee, 3 i.e., defendants Munoz and Montanez, whom plaintiff is requesting information about. (ECF No. 4 73 at 20.) On October 22, 2013, the undersigned denied plaintiff’s motion to compel requesting that 5 6 defendants be ordered to provide him with information regarding the location of defendants 7 Munoz and Montanez. (ECF No. 80.) The undersigned found that defendants’ objection that the 8 information sought did not exist was well taken. (Id.) The returned USM-285 forms indicated 9 that there was no record that either defendant was currently employed by the California 10 Department of Corrections and Rehabilitation. (Id.) The letter from the MCSP Litigation 11 Coordinator indicated that there was no record of either defendants ever being employed at 12 MCSP. (Id.) In addition, the undersigned noted that the exhibits attached to plaintiff’s third 13 amended complaint did not mention either defendant Munoz or Montanez. (Id.) 14 15 For the reasons discussed above, the undersigned finds that defendants Munoz and Montanez cannot be served. For this reason, they should be dismissed. 16 17 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall assign a district judge to this action; 18 IT IS HEREBY RECOMMENDED that defendants Munoz and Montanez be dismissed. 19 These findings and recommendations are submitted to the United States District Judge 20 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 21 after being served with these findings and recommendations, any party may file written 22 objections with the court and serve a copy on all parties. Such a document should be captioned 23 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 24 objections shall be filed and served within fourteen days after service of the objections. The 25 //// 26 //// 27 //// 28 //// 2 1 parties are advised that failure to file objections within the specified time may waive the right to 2 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 Dated: November 8, 2013 4 5 ar2959.dis 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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