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Ross v. Darell

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 10, 2008

VINCENT KEITH ROSS, PLAINTIFF,
v.
OFFICER DARELL, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. On July 21, 2008, the court ordered plaintiff to show cause why this action should not be dismissed because defendant Darell cannot be served. On August 13, 2008, plaintiff filed a response to the July 21, 2008, order. For the following reasons, the court recommends that this action be dismissed.

On August 14, 2007, the court ordered the United States Marshal to serve the complaint on defendant Darell. Process directed to defendant Darell was returned unserved because "no employee by that name in employee data base, also did research on similar spellings."

On October 22, 2007, the court granted plaintiff sixty days to obtain further information in order to re-serve defendant Darell and to return the forms necessary to effect re-service. On December 5, 2007, plaintiff submitted these forms. However, the USM-285 form was prepared for a doe defendant rather than defendant Darell. Accordingly, the court granted plaintiff twenty days to submit the correct forms.

On January 24, 2008, plaintiff submitted the correct forms to serve defendant. On April 18, 2008, the court directed the United States Marshal to again attempt service on defendant Darell. On July 9, 2008, process directed to defendant Darell was returned unserved again because per the claims administrator for Sacramento County, there is no record of a defendant "Darrell" ever employed there.

In the July 21, 2008, order, the court observed that although in the latest service attempt the claims administrator could not locate a defendant "Darrell" as opposed to a defendant "Darell," it did not appear that plaintiff was able to supply the information necessary to effect service of this defendant.

In his August 13, 2008, response, plaintiff requests an extension of time to locate defendant Darell. Plaintiff states that he knows that someone named Darell worked at the jail. However, plaintiff does not describe what further efforts he will make to locate this defendant.

Plaintiff has already been granted sufficient time to locate defendant Darell. Because it does not appear that plaintiff can locate this defendant, the court recommends that this action be dismissed.

IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

20080910

© 1992-2008 VersusLaw Inc.



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