(PC)Misko v. Sullivan et al, No. 1:2010cv00713 - Document 66 (E.D. Cal. 2014)
Court Description: ORDER ADOPTING 62 FINDINGS AND RECOMMENDATIONSP; ORDER DISMISSING Defendant Cleinlin from this action, without prejudice, based on Plaintiffs failure to effect service of the summons and complaint pursuant to Federal Rule of Civil Procedure 4(m), signed by District Judge Lawrence J. O'Neill on 6/6/14. (Martin-Gill, S)
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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 9 JOHN T. MISKO, 10 11 12 Plaintiff, v. WILLIAM SULLIVAN, et al., 13 Defendants. 14 ) ) ) ) ) ) ) ) ) ) ) 1:10-cv-00713-LJO-BAM (PC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS REGARDING DISMISSALOF DEFENDANT CLEINLIN (CEILINE) FOR FAILURE TO EFFECTUATE SERVICE OF PROCESS (ECF Nos. 51, 58, 62) 15 16 Plaintiff John T. Misko (“Plaintiff”) is a state prisoner proceeding pro se and in forma 17 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action currently proceeds 18 against Defendants Cleinlin and Williams for deliberate indifference in violation of the Eighth 19 Amendment. 20 On May 15, 2014, the Magistrate Judge issued Findings and Recommendations that this 21 action be dismissed against Defendant Cleinlin (Ceiline), without prejudice, based on Plaintiff’s 22 failure to effect service of the summons and complaint pursuant to Federal Rule of Civil 23 Procedure 4(m). The Findings and Recommendations were served on the parties appearing in 24 this action and contained notice that any objections were to be filed within fifteen days. (ECF 25 No. 62.) Plaintiff filed objections on June 5, 2014. (ECF No. 65.) 26 Plaintiff states that he was unaware that he had missed an order to respond issued by the 27 Court. Presumably, Plaintiff refers to the second order to show cause issued on March 31, 2014, 28 which directed Plaintiff to show cause why Defendant Cleinlin should not be dismissed from this 1 1 action. Although Plaintiff did not respond to the show cause order, Plaintiff’s objections do not 2 provide any new information for the U.S. Marshal to effect service of the summons and 3 complaint. Instead, Plaintiff refers to the medication records attached to his original complaint. 4 Plaintiff contends that these records provide sufficient information and suggests that the failure 5 to effectuate service is the fault of the U.S. Marshal. 6 Plaintiff’s objection is unsupported. The U. S. Marshals Service, with the assistance of a 7 special investigator from the California Department of Corrections and Rehabilitation, has 8 attempted to locate Defendant Cleinlin (Ceiline) on multiple occasions without success based on 9 information supplied by Plaintiff. (ECF Nos. 25, 29, 43, 51.) There is no indication that the 10 failure to effect service is the fault of the U.S. Marshal. Rather, the inability to effect service 11 appears to be the result of Plaintiff’s difficulty ascertaining the correct name of the defendant. 12 The Court has reviewed the cited records, but cannot decipher the signature that has been 13 attributed to Defendant Cleinlin (or Ceiline). Therefore, as recommended by the Magistrate 14 Judge, Defendant Cleinlin shall be dismissed from this action. This dismissal shall be without 15 prejudice in the event Plaintiff is able to properly identify this defendant as the action proceeds. 16 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted 17 a de novo review of this case. Having carefully reviewed the entire file, including Plaintiff’s 18 objections, the Court finds the Findings and Recommendations to be supported by the record and 19 by proper analysis. 20 Accordingly, IT IS HEREBY ORDERED that: 21 1. The Findings and Recommendations, issued on May 15, 2014, are adopted in full; and 22 2. Defendant Cleinlin is dismissed from this action, without prejudice, based on 23 Plaintiff’s failure to effect service of the summons and complaint pursuant to Federal Rule of 24 Civil Procedure 4(m). 25 IT IS SO ORDERED. 26 Dated: /s/ Lawrence J. O’Neill June 6, 2014 UNITED STATES DISTRICT JUDGE 27 28 2
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