(PS) School v. Bice, et al.,, No. 2:2017cv02156 - Document 27 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 4/3/18 Recommending that this action be dismissed with prejudice re 1 Complaint. These Findings and Recommendations are referred to U.S. District Judge John A. Mendez. Objections to these F&Rs due within fourteen days. (Mena-Sanchez, L)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL C. SCHOOL, 12 13 14 No. 2:17-cv-02156 JAM CKD (PS) Plaintiff, v. FINDINGS AND RECOMMENDATIONS BICE, et al., 15 Defendants. 16 17 By order filed February 20, 2018, plaintiff’s complaint was dismissed for failure to state a 18 claim, and plaintiff was granted thirty days to file an amended complaint. Plaintiff was advised 19 that failure to file an amended complaint would result in a recommendation that this action be 20 dismissed. The thirty day period has now expired, and plaintiff has not filed an amended 21 complaint. 22 Although plaintiff’s copy of the February 20, 2018 order was returned because plaintiff 23 refused service, it appears that plaintiff was properly served. Where a party attempts to avoid 24 service – e.g., by refusing to take the papers – “it is sufficient if the server is in close proximity to 25 the [party], clearly communicates intent to serve court documents, and makes reasonable efforts 26 to leave the papers with the [party].” Doe v. Qi, 349 F. Supp. 1258, 1275, n.5 (N.D. Cal. Dec. 8, 27 2004), citing Errion v. Connell, 236 F.2d 447, 457 (9th Cir. 1956) (service sufficient when sheriff 28 pitched the papers through a hole in defendant’s screen door after she spoke with him and ducked 1 1 2 3 behind a door to avoid service). Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed with prejudice. 4 These findings and recommendations are submitted to the United States District Judge 5 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 6 after being served with these findings and recommendations, any party may file written 7 objections with the court and serve a copy on all parties. Such a document should be captioned 8 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 9 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 10 Ylst, 951 F.2d 1153 (9th Cir. 1991). 11 Dated: April 3, 2018 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 2 school2156.fta_fr 19 20 21 22 23 24 25 26 27 28 2