School v. Bice, et al.,

Filing 27

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 4/3/18 Recommending that this action be dismissed with prejudice re 1 Complaint. These Findings and Recommendations are referred to U.S. District Judge John A. Mendez. Objections to these F&Rs due within fourteen days. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL C. SCHOOL,

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No. 2:17-cv-02156 JAM CKD (PS)

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

BICE, et al.,

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Defendants.

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By order filed February 20, 2018, plaintiff’s complaint was dismissed for failure to state a

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claim, and plaintiff was granted thirty days to file an amended complaint. Plaintiff was advised

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that failure to file an amended complaint would result in a recommendation that this action be

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dismissed. The thirty day period has now expired, and plaintiff has not filed an amended

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complaint.

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Although plaintiff’s copy of the February 20, 2018 order was returned because plaintiff

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refused service, it appears that plaintiff was properly served. Where a party attempts to avoid

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service – e.g., by refusing to take the papers – “it is sufficient if the server is in close proximity to

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the [party], clearly communicates intent to serve court documents, and makes reasonable efforts

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to leave the papers with the [party].” Doe v. Qi, 349 F. Supp. 1258, 1275, n.5 (N.D. Cal. Dec. 8,

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2004), citing Errion v. Connell, 236 F.2d 447, 457 (9th Cir. 1956) (service sufficient when sheriff

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pitched the papers through a hole in defendant’s screen door after she spoke with him and ducked
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behind a door to avoid service).
Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed with
prejudice.

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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. Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: April 3, 2018

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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2 school2156.fta_fr

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