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Johnson v. San Diego Metropolitan and Transit System

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


August 11, 2008

ANTHONY RASHAD JOHNSON, PLAINTIFF,
v.
SAN DIEGO METROPOLITAN AND TRANSIT SYSTEM; SNA DIEGO TROLLEY, INC.; TRANSIT SYSTEMS SECURITY; AND A. CAMPBELL, TRANSIT SYSTEMS SECURITY OFFICER, DEFENDANTS.

The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER ADOPTING REPORT AND RECOMMENDATION [doc. #68]; DISMISSING ACTION WITHOUT PREJUDICE FOR FAILURE TO SERVE THE COMPLAINT and DIRECTING THE CLERK OF THE COURT TO CLOSE THIS CASE

Plaintiff, appearing pro se, filed this action alleging violation of his constitutional rights under 42 U.S.C. § 1983. The action was filed on June 5, 2006. As with all cases in this district, a magistrate judge was assigned to conduct all pretrial matters and to prepare a Report and Recommendation ("Report") on dispositive motions and issues. See 28 U.S.C. § 636.

Since this case was filed, plaintiff has amended his complaint four times*fn1 but has not effectuated service of process. In granting plaintiff leave to file a fifth amended complaint, the magistrate judge noted that plaintiff would not be permitted to further amend the complaint and once the fifth amended complaint was filed, "Plaintiff shall complete the Forms 285 and forward them to the U.S. Marshal. Plaintiff is reminded that he must fill out the necessary forms with care, using Defendants' correct names." (Order filed December 10, 2007 [doc. #52].) On March 27, 2008, plaintiff filed a "motion for request of time limitation on service process of marshal 285 form and serving defendants in a timly [sic] fashion etc. [sic]." [doc. #61.] The magistrate judge again amply provided plaintiff with the information needed to serve defendant MTS with the fifth amended complaint, going so far as to provide the address for MTS's counsel. (See Order filed April 14, 2008 at 2 [doc. #62].) Similarly, the Order noted that the individual defendant, A. Campbell, had not been served with the fifth amended complaint and had not provided cause for the delay in serving Campbell. Plaintiff was admonished that unless Campbell was served with the fifth amended complaint by plaintiff providing the U.S. Marshal with the completed Form 285, Campbell would be dismissed from the action. Id. at 3.

Plaintiff has not served defendants. As a result, the magistrate judge entered a Report recommending that this action be dismissed without prejudice for plaintiff's failure to serve the summons and complaint. Plaintiff was advised that any objection to the Report needed to be filed by July 28, 2008. Plaintiff has not filed objections nor has he sought additional time in which to file objections.*fn2

The district court's role in reviewing a Magistrate Judge's report and recommendation is set forth in 28 U.S.C. § 636(b)(1). Under this statute, the district court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. Under this statute, "the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna- , 328 F.3d 1114, 1121 (9th Cir.) (en banc), cert. denied, 124 S.Ct. 238 (2003).

Even though there has been no objection to the Report, the Court has considered the Report on the merits and finds that dismissal of the action is appropriate. Based on the foregoing, the Report and Recommendation is ADOPTED in its entirety. Plaintiff's action is DISMISSED WITHOUT PREJUDICE for failure to serve the complaint. The Clerk of the Court is directed to close this case.

IT IS SO ORDERED.


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