Williams v. California Department of Corrections & Rehabilitation et al

Filing 27

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 8/24/2016 RECOMMENDING this action be dismissed without prejudice. Referred to Judge John A. Mendez; Objections to F&R due within 14 days. (Yin, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

JOHN W. WILLIAMS,

12
13
14
15

No. 2:15-cv-1057-JAM-EFB P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, et al.,

16

Defendants.

17
18

Plaintiff is a state prisoner proceeding pro se in this civil action. He commenced this

19

action on May 15, 2015 by filing a complaint and paying the filing fee. 1 ECF No. 1. On June 9,

20

2015, the court screened plaintiff’s complaint pursuant to 28 U.S.C. § 1915A and found service

21

appropriate for all defendants. ECF No. 5. More than 90 days have passed and there is no

22

indication from the record that any of the defendants have been served with process.2 See Fed. R.

23

Civ. P. 4(m) (service of process must be effected within 90 days of the filing of the complaint

24

unless plaintiff demonstrates good cause).

25
1

26
27
28

The court denied plaintiff’s request to proceed in forma pauperis pursuant to 28 U.S.C.
§ 1915(g). ECF No. 25.
2

To the contrary, plaintiff’s June 17, 2016 “request for clarification and instructions
regarding service of process” suggests that plaintiff has not succeeded in serving any defendant.
1

1

The court has repeatedly warned plaintiff that it is his responsibility to arrange for service

2

of process and that failure to do so may result in dismissal. ECF No. 12 (“Plaintiff is cautioned

3

that failure to accomplish service within the time prescribed by Rule 4(m) may result in a this

4

action being dismissed for failure to follow court orders, for failure to effect service of process,

5

and/or for lack of prosecution under Rule 41(b) of the Federal Rules of Civil Procedure.”); see

6

also ECF Nos. 16, 18, and 25.

7

The fact that plaintiff is incarcerated does not excuse him from properly serving

8

defendants in a timely manner. See Collins v. Pitchess, 641 F.2d 740, 742 (9th Cir. 1981)

9

(incarceration does not absolve a plaintiff of the responsibility to prosecute his actions diligently).

10

Furthermore, plaintiff has had ample time to retain a process server and effect service and has

11

failed to do so.

12
13

Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed without
prejudice. See Fed. R. Civ. P. 4(m), 41(b); E.D. Cal. Local Rule 110.

14

These findings and recommendations are submitted to the United States District Judge

15

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

16

after being served with these findings and recommendations, any party may file written

17

objections with the court and serve a copy on all parties. Such a document should be captioned

18

“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

19

within the specified time may waive the right to appeal the District Court’s order. Turner v.

20

Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

21

Dated: August 24, 2016.

22
23
24
25
26
27
28
2