(PC) Hamilton v. Hart et al, No. 1:2010cv00272 - Document 107 (E.D. Cal. 2017)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Erica P. Grosjean on 1/18/2017 recommending dismissal of Doe Defendant re 1 Prisoner Civil Rights Complaint. Referred to Judge Dale A. Drozd; Objections to F&R due by 2/24/2017. (Lundstrom, T)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DENNIS L. HAMILTON, 12 13 14 15 16 Case No. 1:10-cv-00272-DAD-EPG (PC) Plaintiff, vs. JOHN HART, et al. Defendants. FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF DOE DEFENDANT OBJECTIONS, IF ANY, DUE WITHIN 30 DAYS 17 18 19 Plaintiff Dennis Hamilton is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the original 20 complaint for a number of alleged Eighth Amendment violations. Among the defendants is a 21 Doe Lieutenant whom Plaintiff was unable to identify at the time he filed the Complaint. As 22 explained in the Court’s Scheduling Order (ECF No. 92), Defendants were required to assist 23 Plaintiff in identifying any Doe defendants and Plaintiff then had the responsibility to move to 24 amend the Complaint no later than January 6, 2017. On January 11, 2017, the parties appeared 25 for a discovery status conference and explained that they had been unable to identify the Doe 26 Lieutenant from Plaintiff’s Complaint. Plaintiff was also unable to provide any other identifying 27 1 28 1 information for the Doe Lieutenant and did not offer any reason why the Doe Lieutenant should 2 not be dismissed from this action. 3 Rule 4(m) of the Federal Rules of Civil Procedure provides, in relevant part: 4 6 If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff, must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. 7 Plaintiff has failed to set forth good cause for his failure to identify the Doe Lieutenant 8 so that the United States Marshal could serve a summons and the complaint. Accordingly, the 9 Court RECOMMENDS that Defendant Doe Lieutenant be DISMISSED from this action, 5 10 without prejudice, pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. 11 These findings and recommendations will be submitted to the United States District 12 Judge assigned to this case pursuant to the provisions of Title 28 of the United States Code 13 section 636(b)(1). Within thirty (30) days after being served with these findings and 14 recommendations, the parties may file written objections with the Court. The document should 15 be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The parties 16 are advised that failure to file objections within the specified time may waive the right to appeal 17 the District Court’s order. Bastidas v. Chappell, 791 F.3d 1155, 1159 (9th Cir. 2015). 18 19 20 IT IS SO ORDERED. Dated: January 18, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 2