(PC) Washington v. Mohamed et al, No. 2:2008cv00386 - Document 109 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 06/15/18 RECOMMENDING that defendant Martinez be dismissed from this action for failure to effect timely service. Referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)
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(PC) Washington v. Mohamed et al Doc. 109 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN WASHINGTON, 12 Plaintiff, 13 14 15 16 No. CIV S-08-0386-MCE-CMK-P vs. ORDER SALEM MOHAMMED, et al., Defendants. / 17 Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant 18 to 42 U.S.C. § 1983. Service of process directed to defendant Martinez was returned unexecuted 19 on October 8, 2008. On October 20, 2008, plaintiff was ordered to promptly seek additional 20 information sufficient to effect service on any unserved defendants, and to notify the court once 21 such information has been ascertained. Plaintiff has not responded to that order, and no 22 additional information regarding service information for defendant Martinez has been submitted. 23 Plaintiff was cautioned that failure to effect service may result in the dismissal of unserved 24 defendants pursuant to Federal Rule of Civil Procedure 4(m). 25 26 Rule 4(m) provides, in part, that “[i]f a defendant is not served within 120 days after the complaint is filed, the court – on motion or on its own after notice to the plaintiff – must 1 Dockets.Justia.com 1 dismiss the action without prejudice against that defendant or order that service may be made 2 within a specified time.” Fed. R. Civ. Proc. 4(m). Here, plaintiff’s complaint was filed on 3 February 21, 2008. Service was authorized on July 2, 2008, and the United States Marshal was 4 directed to complete service on August 6, 2008. Service as to defendant Martinez was returned 5 unexecuted on October 8, 2008. Thus, more than 120 days have passed since the filing of the 6 complaint, as well as the attempted service of defendant Martinez. Plaintiff has not provided any 7 additional information for which the United States Marshal to attempt additional service on 8 defendant David. 9 10 11 12 Accordingly, the undersigned finds it appropriate to dismiss the unserved defendant from this action, pursuant to Rule 4(m). Based on the foregoing, the undersigned recommends that defendant Martinez be dismissed from this action for failure to effect timely service. 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 14 days 15 after being served with these findings and recommendations, any party may file written 16 objections with the court. Responses to objections shall be filed within 14 days after service of 17 objections. Failure to file objections within the specified time may waive the right to appeal. 18 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 19 20 21 22 DATED: June 15, 2018 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 23 24 25 26 2