(PC) Knapp v. Hickman et al, No. 2:2005cv02520 - Document 197 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 10/13/2009 RECOMMENDING that the 189 OSC be discharged; defendants Gunning, Marshall, Murray and Warvarovski be dismissed; Claims 1g and 8f be dismissed; this action proceed against the remaining defendants, as identified in the courts September 17, 2009 118 Order. Objections due within 20 days. (Suttles, J)
Download PDF
<![CDATA[
(PC) Knapp v. Hickman et al Doc. 197 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ERIC CHARLES RODNEY KNAPP, 12 Plaintiff, 13 14 vs. No. CIV S-05-2520-FCD-CMK-P FINDINGS AND RECOMMENDATIONS RODERICK HICKMAN, et al., 15 Defendants. 16 / 17 Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant 18 to 42 U.S.C. § 1983. On August 19, 2009, the court issued Plaintiff an order to show case why 19 the unserved defendants, Gunning, Marshall, Murray and Warvarovski, should not be dismissed 20 from this action for failure to effect timely service. 21 Plaintiff filed a response to the order to show case, wherein he conceded that he 22 cannot provide any additional information as to these defendants, despite his diligent efforts. He 23 does not provide any reason for the court to not to dismiss these unserved defendants. 24 /// 25 /// 26 /// 1 Dockets.Justia.com 1 Federal Rule of Civil Procedure 4(m) provides, in part, that “[i]f a defendant is 2 not served within 120 days after the complaint is filed, the court – on motion or on its own after 3 notice to the plaintiff – must dismiss the action without prejudice against that defendant or order 4 that service may be made within a specified time.” Here, Plaintiff’s operative complaint was 5 filed December 1, 2006. More than 120 days have passed since the third amended complaint was 6 filed. Notice has been given to Plaintiff that the court finds it appropriate to dismiss these 7 unserved defendants. Plaintiff has not provided sufficient reason for the court to delay dismissal 8 of these defendants from this action. 9 In addition, pursuant to the order adopting the undersigned’s August 21, 2009, 10 findings and recommendations, claims 1g and 8f were not dismissed. However, these two claims 11 only name defendants Gunning, Marshall, and/or defendants who were previously dismissed 12 from this action. As the undersigned finds it appropriate to dismiss these unserved defendants, it 13 is also appropriate to dismiss these claims which name no other defendant remaining in this 14 action. 15 Based on the foregoing, the undersigned recommends that: 16 1. The Order to Show Cause (Doc. 189) be discharged; 17 2. Defendants Gunning, Marshall, Murray and Warvarovski be dismissed as 18 defendants to this action for failure to effect timely service; 19 20 3. in this action; and 21 22 Claims 1g and 8f be dismissed as failing to name any defendant remaining 4. This action proceed as against the remaining defendants, as identified in the court’s September 17, 2009 order. 23 These findings and recommendations are submitted to the United States District 24 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 20 days 25 after being served with these findings and recommendations, any party may file written 26 /// 2 1 objections with the court. The document should be captioned “Objections to Magistrate Judge's 2 Findings and Recommendations.” Failure to file objections within the specified time may waive 3 the right to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 4 5 6 7 8 9 DATED: October 13, 2009 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
