-RKS Rose v. Swanson et al, No. 6:2010cv00048 - Document 13 (D. Mont. 2011)

Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 11 in full. Defendant Larner will be dismissed if she is not served and a notice of service is not filed with the court by March 4, 2011. Signed by Judge Donald W. Molloy on 2/9/2011. Mailed to Rose. (TAG, )
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-RKS Rose v. Swanson et al Doc. 13 FILED FEB 09 2011 PATRICK E. DUFFY, CLERK By iioei'iP;;;UTYTVret"'E"'RvK."M""fSSOU=:­::LA- IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA HELENA DIVISION ROBERT L. ROSE, Plaintiff, vs. ROSS SWANSON, et al., Defendants. CV 10­48­H­DWM ) ) ) ) ) ) ) ) ) ORDER ­­­­­­­­­­­­­­­­­­­­­) Plaintiff R obert L. Rose, a state prisoner proceeding pro se, brought this action pursuant to 42 U.S.C. § 1983. United States Magistrate Judge Keith Strong entered Findings and Recommendation on January 4, 2011 and recommended dismissing Defendant Anita Lamer because she has not been served and Mr. Rose has provided insufficient information for the United States Marshal to effectuate 1 Dockets.Justia.com service. Plaintiff did not timely object to the Findings and Recommendation, and so has waived the right to de novo review ofthe record. 28 U.S.C. § 636(bXl). This Court will review the Findings and Recommendation for clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach" Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). Clear error exists if the Court is left with a "definite and firm conviction that a mistake has been committed." United States v. Syrax, 235 F.3d 422,427 (9th Cir. 2000). In Rose's case, Legal Counsel for the Department of Corrections waived service for some defendants but declined to waive service on behalf o f Anita Lamer. Acknowledging that for a state prisoner proceeding in forma pauperis the United States Marshal will serve a complaint on a Defendant, Judge Strong ordered Mr. Rose to provide an address for Anita Lamer. Mr. Rose responded on December 27, 2010 and indicated that Defendant Lamer is in Wyoming somewhere. I find no clear error in Judge Strong's Findings and Recommendations. Mr. Rose provided inadequate infomlation to aid the United States Marshal in serving Defendant Lamer. See Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). Mr. Rose is on notice that his claim against Lamer will be dismissed if service is not effectuated by March 4, 2011. 2 IT IS HEREBY ORDERED that Judge Strong's Findings and Recommendation (dkt # 11) are adopted. Defendant Lamer will be dismissed if she is not served and a notice of service is not filed with the court by March 4, 2011. Dated this of February, 2011. 3