(PC) Chess v. Dovey et al, No. 2:2007cv01767 - Document 56 (E.D. Cal. 2009)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 09/30/09 recommending that defendant Reid be dismissed from this action without prejudice. Referred to Judge Lawrence K. Karlton. Objections due within 20 days. (Plummer, M)

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(PC) Chess v. Dovey et al Doc. 56 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 MICHAEL CHESS, 11 Plaintiff, 12 vs. 13 No. CIV S-07-1767 LKK DAD P J. DOVEY, et al., 14 Defendants. 15 / 16 17 FINDINGS AND RECOMMENDATIONS Plaintiff is a state prisoner proceeding pro se and in forma pauperis with this civil rights action. 18 On June 13, 2008, the court ordered the United States Marshal to serve plaintiff’s 19 complaint on ten defendants. The Marshal was unable to effect service on defendant Reid, so on 20 March 20, 2009, the court advised plaintiff that if he wished to proceed with his claims against 21 defendant Reid, he would be required to provide additional information to the court that would 22 enable the United States Marshal to serve this defendant. The court instructed plaintiff to 23 promptly seek such information through any means available to him and cautioned plaintiff that 24 when service of a complaint is not made upon a defendant within 120 days after the complaint 25 was filed, the court may be required to dismiss the plaintiff’s claims against that defendant. See 26 Fed. R. Civ. P. 4(m). The court also ordered plaintiff to submit within thirty days the documents 1 Dockets.Justia.com 1 necessary to effect service on defendant Reid. Plaintiff timely submitted the necessary service 2 documents. However, once again, based on the information plaintiff provided to the court the 3 Marshal was unable to effect service on defendant Reid. 4 Under the circumstances of this case, the undersigned finds that plaintiff cannot 5 show good cause for the failure to effect service on defendant Reid. Although plaintiff has had 6 more than sufficient time to provide the court with the additional information necessary to enable 7 the United States Marshal to serve this defendant, on two separate occasions plaintiff has failed 8 to provide the court with a current address for the defendant. Accordingly, the court concludes 9 that defendant Reid should be dismissed from this action. See Fed. R. Civ. P. 4(m). 10 For the reasons discussed above, IT IS HEREBY RECOMMENDED that 11 defendant Reid be dismissed from this action without prejudice. See Fed. R. Civ. P. 4(m) and 12 41(b). 13 These findings and recommendations are submitted to the United States District 14 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty 15 days after being served with these findings and recommendations, plaintiff may file written 16 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 17 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 18 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 19 F.2d 1153 (9th Cir. 1991). 20 DATED: September 30, 2009. 21 22 23 24 DAD:9 ches1767.56 25 26 2

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