(PC) Monson v. Melkonian, et al., No. 1:2017cv00395 - Document 39 (E.D. Cal. 2018)

Court Description: ORDER ADOPTING 31 FINDINGS AND RECOMMENDATIONS; ORDER Dismissing Defendant M. Martinez from this Action, without Prejudice signed by Chief Judge Lawrence J. O'Neill on 10/22/2018. (Flores, E)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 TRENELL MONSON, Case No. 1:17-cv-00395-LJO-EPG (PC) 11 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 12 v. (ECF NOS. 26 & 31) 13 R. MELKONIAN and M. MARTINEZ, 14 Defendants. ORDER DISMISSING DEFENDANT M. MARTINEZ FROM THIS ACTION, WITHOUT PREJUDICE 15 16 17 Trenell Monson (“Plaintiff”) is a prisoner1 being held at Fresno County Jail. He is 18 proceeding pro se and in forma pauperis with this civil rights action filed pursuant to 42 U.S.C. 19 § 1983. This case now proceeds on Plaintiff’s Second Amended Complaint (ECF No. 10) 20 against defendants R. Melkonian and M. Martinez on Plaintiff’s claim for failure to protect in 21 violation of the Fourteenth Amendment (ECF Nos. 12 & 24). The matter was referred to a 22 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 23 On October 9, 2018, Magistrate Judge Erica P. Grosjean entered findings and 24 recommendations, recommending that “defendant Martinez be dismissed from this action 25 because of Plaintiff’s failure to provide the Marshal with accurate and sufficient information to 26 effect service of the summons and complaint on defendant Martinez within the time period 27 1 28 Plaintiff has alleged that he was a pretrial detainee at the time of the incidents described in the complaint. 1 1 prescribed by Federal Rule of Civil Procedure 4(m).” (ECF No. 31, p. 4). Judge Grosjean 2 noted that the findings and recommendations would be vacated “if during the objection period 3 Plaintiff provides another address for defendant Martinez, requests the issuance of a third party 4 subpoena on an appropriate entity, or shows good cause for the failure to timely serve 5 defendant Martinez….” (Id. at p. 3). 6 The parties were provided an opportunity to file objections to the findings and 7 recommendations. (Id. at 4). On October 17, 2018, Plaintiff filed his objections (ECF No. 34) 8 and requested that a third party subpoena be issued on “the U.S. Military” (ECF No. 35). 9 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 304, this 10 Court has conducted a de novo review of this case. Having carefully reviewed the entire file, 11 the Court finds the findings and recommendations to be supported by the record and proper 12 analysis. 13 In his objections, Plaintiff states that he never received a document from the United 14 States Marshals Service (“the Marshal”) stating that the summons was returned unexecuted. If 15 he had received the document, he would have requested the issuance of a third party subpoena 16 so that he could attempt to find defendant Martinez’s current address. Plaintiff also states that 17 due to his incarceration he is unable to find any other addresses for defendant Martinez. 18 While the Court is sympathetic to Plaintiff’s situation, it is Plaintiff’s responsibility to 19 provide the Marshal with accurate and sufficient information to effect service of the summons 20 and complaint on defendant Martinez, and he has failed to do so. While Plaintiff did request 21 the issuance of a third party subpoena, he did not request that it be issued on an appropriate 22 entity. The Court cannot direct the Marshal to serve a subpoena on “the U.S. Military.” 23 Accordingly, THE COURT HEREBY ORDERS that: 24 1. The Findings and Recommendations issued by the Magistrate Judge on October 9, 25 26 27 2018, are ADOPTED IN FULL; 2. Defendant Martinez is dismissed from this action, without prejudice, because of Plaintiff’s failure to provide the Marshal with accurate and sufficient information to 28 2 1 effect service of the summons and complaint on defendant Martinez within the time 2 period prescribed by Federal Rule of Civil Procedure 4(m); and 3 3. The Clerk of Court is directed to reflect the dismissal of defendant M. Martinez on the Court’s docket. 4 5 6 7 8 IT IS SO ORDERED. Dated: /s/ Lawrence J. O’Neill _____ October 22, 2018 UNITED STATES CHIEF DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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