(PC) Perez v. Runnels et al, No. 2:2006cv01209 - Document 45 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 02/02/09 recommending that the claims against defendant Rohlfing be dismissed; this action be dismissed. Referred to Judge John A. Mendez. Objections due within 20 days. (Plummer, M)
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(PC) Perez v. Runnels et al Doc. 45 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 MARCO PEREZ, 11 12 13 Plaintiff, No. CIV S-06-1209 JAM GGH P vs. D.L. RUNNEL, et al., 14 Defendants. 15 FINDINGS & RECOMMENDATIONS / 16 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 17 42 U.S.C. § 1983. The only remaining defendant is J. W. Rohlfing. For the following reasons, 18 the court recommends that the claims against this defendant be dismissed and this action be 19 dismissed. 20 On July 11, 2007, the court ordered the U.S. Marshal to serve the complaint on 21 defendants. Process directed to defendant Rohlfing was returned unserved because “not at 22 facility.” On May 5, 2008, the court granted plaintiff sixty days to locate defendant and return 23 the forms necessary to effect service. On July 2, 2008, plaintiff resubmitted the documents 24 necessary to effect service. On July 25, 2008, the court ordered the U.S. Marshal to re-attempt 25 service of this defendant. On October 8, 2008, process directed to defendant Rohlfing was 26 returned unserved again because defendant is not employed at High Desert State Prison, where 1 Dockets.Justia.com 1 plaintiff directed process served. In addition, a note from the U.S. Marshal on the returned 2 USM-285 form stated that per CDC Locator, there is no J.W. Rohlfing in the database. 3 On October 29, 2008, the court ordered plaintiff to show cause why the claims 4 against defendant Rohlfing should not be dismissed. On December 1, 2008, plaintiff filed a 5 pleading requesting thirty days to locate defendant Rohlfing through the Executive Office of the 6 California Medical Board. On December 16, 2008, the court granted this request and ordered 7 plaintiff to submit the forms necessary to effect service of defendant within forty-five days. 8 On January 22, 2009, plaintiff filed a declaration stating that he has not been 9 given law library access. However, plaintiff goes on to state that “plaintiff was just not able to 10 locate Dr. J.W. Rohlfing.” January 22, 2009, pleading, ¶ 7. Plaintiff states that he can only 11 locate defendant through discovery. However, because all other defendants have been dismissed 12 plaintiff cannot utilize discovery to locate defendant. 13 Attached to plaintiff’s January 22, 2009, pleading is a letter to plaintiff dated 14 December 8, 2008, from the Medical Board of California stating that “we are unable to locate the 15 doctor,” presumably defendant Rohlfing, “in our database.” 16 Plaintiff has been granted adequate opportunity to locate defendant Rohlfing. 17 Plaintiff’s recent lack of law library access has not impeded his ability to locate this defendant. 18 Because plaintiff cannot locate defendant Rohlfing, the claims against this defendant should be 19 dismissed. 20 Accordingly, IT IS HEREBY RECOMMENDED that: 21 1. The claims against defendant Rohlfing be dismissed; 22 2. This action be dismissed. 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 twenty 25 days after being served with these findings and recommendations, any party may file written 26 objections with the court and serve a copy on all parties. Such a document should be captioned 2 1 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 2 shall be served and filed within ten days after service of the objections. The parties are advised 3 that failure to file objections within the specified time may waive the right to appeal the District 4 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 5 DATED: February 2, 2009 6 /s/ Gregory G. Hollows 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 per1209.157 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3
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