-CMK (PC) Ross v. David et al, No. 2:2009cv00984 - Document 46 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 4/21/2011 RECOMMENDING that dft David be dismissed from this action for failure to effect timely service. Referred to Judge Kimberly J. Mueller; Objections due w/in 14 days. (Yin, K)
Download PDF
-CMK (PC) Ross v. David et al Doc. 46 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALEX D. ROSS, 12 No. CIV S-09-0984-KJM-CMK-P Plaintiff, 13 vs. 14 A. DAVID, et al., 15 16 FINDINGS AND RECOMMENDATIONS 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 David was returned unexecuted on 19 September 21, 2009. On February 3, 2011, 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 David 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 April 3 13, 2009. Service was authorized on May 6, 2009, and the United States Marshal was directed to 4 complete service on June 1, 2009. Service as to defendant David was returned unexecuted on 5 September 21, 2009. Thus, more than 120 days have passed since the filing of the complaint, as 6 well as the attempted service of defendant David. Plaintiff has not provided any additional 7 information for which the United States Marshal to attempt additional service on defendant 8 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 David 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: April 21, 2011 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 23 24 25 26 2