(PC) Landau v. Voss et al, No. 1:2007cv00815 - Document 107 (E.D. Cal. 2011)

Court Description: ORDER Withdrawing Orders (Doc. 71 , 74 ), FINDINGS and RECOMMENDATIONS Recommending Dismissal Of Defendants Roberto Morisho And W.T. Voss From Action (Docs. 70 , 73 ), Objections, If Any, Due Within Fourteen Days, signed by Magistrate Judge Dennis L. Beck on 12/13/2011. F&R's referred to Judge Anthony W. Ishii; Objections to F&R due by 12/30/2011. (Fahrney, E)
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(PC) Landau v. Voss et al Doc. 107 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 SID LANDAU, CASE NO. 1:07-CV-00815-AWI-DLB PC 8 Plaintiff, ORDER WITHDRAWING ORDERS (DOCS. 71, 74) 9 v. 10 FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF DEFENDANTS ROBERTO MORISHO AND W. T. VOSS FROM ACTION (DOCS. 70, 73) W. T. VOSS, et al., 11 Defendants. 12 13 / OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS 14 15 Plaintiff Sid Landau (“Plaintiff”) is a civil detainee proceeding pro se and in forma 16 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On May 6, 2010 and August 17 24, 2010, the Court dismissed Defendants Roberto Morisho and W. T. Voss from this action. 18 Docs. 71, 74. However, the Court finds that these orders are beyond the scope of jurisdiction as 19 stated in 28 U.S.C. § 636(b). Accordingly, the Court will withdraw those orders and issue the 20 following Findings and Recommendations. 21 On April 19, 2010, the United States Marshal, who must effect service of process on 22 behalf of plaintiffs proceeding in forma pauperis, returned a summons for Defendant W. T. Voss 23 unexecuted. Doc. 70. According to the summons, Defendant Voss is deceased. In light of the 24 suggestion in the record of Defendant Voss’s death, the Court will dismiss Defendant Voss from 25 this action. On August 12, 2010, the United States Marshal returned a summons for Defendant 26 Roberto Morisho unexecuted. Doc. 73. According to the summons, the house is vacant. Thus, 27 the address provided by Plaintiff was no longer accurate. This was the United States Marshal’s 28 second attempt to serve process on both Defendants. Where a pro se, in forma pauperis plaintiff 1 Dockets.Justia.com 1 fails to provide the Marshal with accurate and sufficient information to effect service of the 2 summons and complaint, the Court’s sua sponte dismissal of the unserved defendants is 3 appropriate. Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 1994) (quoting Puett v. 4 Blandford, 912 F.2d 270, 275 (9th Cir. 1990)), abrogated in part on other grounds, Sandin v. 5 Conner, 515 U.S. 472 (1995). 6 7 Accordingly, it is HEREBY ORDERED that the Court’s Orders, filed May 6, 2010 and August 24, 2010, are withdrawn. 8 It is HEREBY RECOMMENDED that Defendants W. T. Voss and Roberto Morisho be 9 dismissed from this action, without prejudice, pursuant to Federal Rule of Civil Procedure 4(m). 10 These Findings and Recommendations will be submitted to the United States District 11 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen 12 (14) days after being served with these Findings and Recommendations, the parties may file 13 written objections with the Court. The document should be captioned “Objections to Magistrate 14 Judge’s Findings and Recommendations.” The parties are advised that failure to file objections 15 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 16 Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991). 17 18 IT IS SO ORDERED. Dated: 3b142a December 13, 2011 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 2