Sessoms v. Keller et al

Filing 47

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 07/19/18 ORDERING the Clerk is directed to randomly assign a United States District Judge to this case. Also, RECOMMENDING that defendant Venegas Jr. be dismissed. Assigned and referred to Judge William B. Shubb. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TIO DINERO SESSOMS,

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No. 2:16-cv-1943-EFB P

Plaintiff,
v.
JOHN PATRICK KELLER, et al.,

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ORDER AND FINDINGS AND
RECOMMENDATIONS

Defendants.

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Plaintiff is a former state prisoner proceeding without counsel in an action brought under

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42 U.S.C. § 1983. On May 10, 2018, the court informed him that for the second time that the

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United States Marshal had been unable to serve defendant Venegas, Jr. using the information

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provided by plaintiff. ECF No. 38. The court instructed plaintiff to provide new information for

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service of process within 30 days and warned him that failure to do so or show cause for such

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failure would result in a recommendation that defendant Venegas, Jr. be dismissed pursuant to

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Rule 4(m) of the Federal Rules of Civil Procedures. Id.; see also Fed. R. Civ. P. 4(m) (service of

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process must be effected within 90 days of the filing of the complaint unless plaintiff

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demonstrates good cause). The time for acting has passed and plaintiff has not responded to the

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court’s order.

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Plaintiff has had three opportunities to submit information about where defendant

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Venegas, Jr. can be served, and has been warned that Rule 4(m) requires that service of process

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be effected within 90 days of the filing of the complaint absent a showing of good cause. The
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time for serving defendant Venegas, Jr. has expired and plaintiff has failed to demonstrate the

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requisite good cause to avoid dismissal under Rule 4(m).

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Accordingly, it is hereby ORDERED that the Clerk is directed to randomly assign a
United States District Judge to this case.
Further, it is RECOMMENDED that defendant Venegas, Jr. be dismissed. See Fed. R. Civ.
P. 4(m).

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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 19, 2018.

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