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Miranda v. Booker

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


April 13, 2007

ENRIQUE MIRANDA, PLAINTIFF,
v.
HARVEY M. BOOKER, SUPERVISOR I.N.S. INSPECTOR, KENNETH WALSH, I.N.S. INSPECTOR, RIAD TAYIAN, I.N.S. INSPECTOR, CLAUDIA RIOS, I.N.S. INSPECTOR, LISSETE GUZMAN, I.N.S. INSPECTOR, MR. NEDDERMEYER, I.N.S. AGENT, JOHN DOE(S) 1-10, IN THEIR INDIVIDUAL CAPACITIES, ET. AL., DEFENDANTS.

The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION

Plaintiff, proceeding pro se, has unsuccessfully attempted several times to serve Defendants in this action brought under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Most recently, Plaintiff moved for default judgment against Defendants. Pursuant to 28 U.S.C. § 636(b)(1), this matter was referred to Magistrate Judge Cathy Bencivengo, but the motion was withdrawn when it was clear Plaintiff had not properly yet served the individual Defendants. Judge Bencivengo issued her report and recommendation ("R&R"), deeming the motion for default judgment withdrawn on the basis of Plaintiff's own admission, because it was clear Plaintiff had not yet properly served the individual defendants. (Id. at 3:2--4.) The R&R recommends Plaintiff be given one last opportunity to effect service, but warned Plaintiff if his attempted service was again unsuccessful, the action would be recommended for dismissal under Fed. R. Civ. P. 4(m). (Id. at 3:15--16.) As the R&R observes, while Plaintiff has repeatedly attempted service, he has not yet succeeded, but in view of the briefing on the motion for default judgment, he should now be fully prepared to complete service of process. (Id. at 3:14--19.) No objections to the R&R were filed.

A district judge "may accept, reject, or modify the recommended decision" on a dispositive matter prepared by a magistrate judge proceeding without the consent of the parties for all purposes. Fed. R. Civ. P. 72(b); see 28 U.S.C. §636(b)(1). "The court shall make a de novo determination of those portions of the [report and recommendation] to which objection is made." 28 U.S.C. §636(b)(1). Section 636(b)(1) does not require some lesser review by the district court when no objections are filed. Thomas v. Arn, 474 U.S. 140, 149--50 (1985). The "statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original).

The Court has reviewed the R&R and finds the recommendations supported by the law. The Court therefore ADOPTS the R&R. Plaintiff may, no later than Friday, May 4, 2007, submit to the United States Marshals' Service a properly completed summons, form USM-285, and copy of the first amended complaint for each individual Defendant. The Court has given Plaintiff ample opportunity to research proper service on these Defendants. Plaintiff is admonished that he is responsible for the accuracy and completeness of the materials he submits to the U.S. Marshals' Service. Should Plaintiff fail to accomplish service as directed within the time permitted, he is cautioned that this action may be dismissed for failure to effect service.

IT IS SO ORDERED.

20070413

© 1992-2007 VersusLaw Inc.



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