(PC) Agnes v. Joseph et al, No. 1:2010cv00807 - Document 50 (E.D. Cal. 2012)

Court Description: ORDER Adopting Findings and Recommendations and Dismissing Defendant Dixon, without Prejudice, for Failure to Serve pursuant to Federal Rule of Civil Procedure 4(M), signed by District Judge Lawrence J. O'Neill on 12/7/12. Defendant Dixon terminated. (Verduzco, M)

Download PDF

(PC) Agnes v. Joseph et al Doc. 50 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 MARK AGNES, CASE NO: 1:10-cv-00807-LJO-GBC (PC) 9 Plaintiff, 10 v. 11 NURSE JOSEPH, et al., 12 ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING DEFENDANT DIXON, WITHOUT PREJUDICE, FOR FAILURE TO SERVE PURSUANT TO FEDERAL OF CIVIL PROCEDURE 4(M) Defendants. 13 / Doc. 49 14 15 On May 10, 2010, Plaintiff Mark Agnes (“Plaintiff”), a state prisoner proceeding pro se, filed 16 this civil rights action pursuant to 42 U.S.C. § 1983. Doc. 1. The matter was referred to a United 17 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 18 On June 10, 2011, the Court directed the United States Marshal Service (“USMS”) to initiate 19 service of process on Defendants. Doc. 16. On July 7, 2011, the USMS returned the first service 20 attempt unexecuted as to Defendant Dixon. Doc. 17. On August 3, 2011, Defendant Joseph executed 21 a waiver of service. Doc. 21. On September 1, 2011, the Court ordered Plaintiff to furnish further 22 information for initiation of service of process as to Defendant Dixon. Doc. 23. Plaintiff submitted 23 a response, and on September 20, 2011, the Court issued an order directing the USMS to make a 24 second attempt to serve Defendant Dixon. Doc. 27. On October 31, 2011, the USMS returned the 25 second service attempt unexecuted as to Defendant Dixon. Doc. 30. On November 16, 2011, the 26 Court issued an order directing the USMS to make a third attempt to serve Defendant Dixon and to 27 contact Legal Affairs Division of CDCR in attempting to execute service. Doc. 33. On June 13, 28 2012, the USMS returned the third service attempt unexecuted as to Defendant Dixon. Doc. 37. Page 1 of 3 Dockets.Justia.com 1 In the first and second returns of unexecuted service, the USMS noted that Defendant Dixon 2 was not employed and not in the CDCR database. Docs. 17, 30. In the third return of unexecuted 3 service, the USMS noted that they contacted Legal Affairs and that the last known address had been 4 vacant for six (6) months and no forwarding information was available. Doc. 37. 5 On July 12, 2012, the Magistrate Judge issued findings and recommendations, recommending 6 that Defendant Dixon be dismissed from this action, without prejudice, for Plaintiff’s failure to serve 7 within the 120-day period prescribed by Rule 4(m). Doc. 39. On August 16, 2012, the Court declined 8 to adopt the findings and recommendations, ordered Plaintiff to submit identifying information as 9 to Defendant Dixon, and permitted Plaintiff to engage in discovery. Doc. 41. 10 On August 29, 2012, Plaintiff submitted the same identifying information he provided on 11 September 9, 2011, and the same information that the Court has provided to the USMS in the last 12 two orders of service. Docs. 25, 27, 33, 43. On August 29, 2012, Plaintiff also filed a motion to 13 compel. Doc. 42. Defendant Joseph did not respond to the motion to compel. In a separate order, the 14 Court denied Plaintiff’s motion to compel since Plaintiff did not serve discovery requests on 15 Defendant Joseph prior to filing his motion to compel. See Fed. R. Civ. P. 37(a)(3). 16 On November 6, 2012, the Magistrate Judge issued Findings and Recommendations, 17 recommending that Defendant Dixon be dismissed from this action, without prejudice, for Plaintiff’s 18 failure to serve within the 120-day period prescribed by Rule 4(m). Doc. 49. The parties have not 19 filed any objections. 20 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a de 21 novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings and 22 Recommendations to be supported by the record and by proper analysis. 23 // 24 // 25 // 26 // 27 // 28 // Page 2 of 3 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. 3 The Findings and Recommendations, filed November 6, 2012, are ADOPTED, in full; and 4 2. Defendant Dixon is DISMISSED from this action, without prejudice, and toll the 5 applicable statue of limitations for any new action that Plaintiff might file for the 6 duration of this case, for failure to serve within the 120-day period prescribed by 7 Rule 4(m) of the Federal Rules of Civil Procedure. 8 9 10 11 IT IS SO ORDERED. 12 Dated: b9ed48 December 7, 2012 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 3 of 3

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.