(PC) Hypolite v. Zariora et al, No. 1:2014cv01199 - Document 28 (E.D. Cal. 2015)

Court Description: FINDINGS And RECOMMENDATIONS Recommending Dismissal Of Defendant N. Schultz Pursuant To Rule 4(M) Of The Federal Rules Of Civil Procedure (ECF Nos. 23 , 24 ), signed by Magistrate Judge Stanley A. Boone on 11/10/2015. F&R's referred to Judge Lawrence J. O'Neill; Objections to F&R due by 12/14/2015.(Fahrney, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 AVERY HYPOLITE, 12 Plaintiff, 13 14 v. R. ZAMORA, et al., 15 Defendants. 16 FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF DEFENDANT N. SCHULTZ PURSUANT TO RULE 4(M) OF THE FEDERAL RULES OF CIVIL PROCEDURE [ECF Nos. 23, 24] pursuant to 42 U.S.C. § 1983. This action is proceeding against Defendant Zamora for use of excessive force and against 19 20 Case No.: 1:14-cv-01199-LJO-SAB (PC) Plaintiff Avery Hypolite is appearing pro se and in forma pauperis in this civil rights action 17 18 ) ) ) ) ) ) ) ) ) ) Defendant Schultz for failure to intervene in violation of the Eighth Amendment. 21 On September 16, 2015, the United States marshal returned the USM-285 form unexecuted as 22 to Defendant Schultz. (ECF No. 23.) On September 18, 2015, the Court issued an order for Plaintiff 23 to show cause within thirty days as to why Defendant N. Schultz should not be dismissed from the 24 action pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. (ECF No. 24.) More than thirty 25 days have passed and Plaintiff has not responded to the Court’s September 18, 2015, order. 26 /// 27 /// 28 /// 1 Accordingly, it is HEREBY RECOMMENDED that Defendant N. Schultz be DISMISSED 1 2 from the action pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. 3 This Findings and Recommendation will be submitted to the United States District Judge 4 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days after 5 being served with this Findings and Recommendation, the parties may file written objections with the 6 Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 7 Recommendation.” The parties are advised that failure to file objections within the specified time may 8 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 9 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 10 11 IT IS SO ORDERED. 12 Dated: 13 November 10, 2015 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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