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Alex D. Ross v. A. David

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


April 21, 2011

ALEX D. ROSS,
PLAINTIFF,
v.
A. DAVID, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Service of process directed to defendant David was returned unexecuted on September 21, 2009. On February 3, 2011, plaintiff was ordered to promptly seek additional information sufficient to effect service on any unserved defendants, and to notify the court once such information has been ascertained. Plaintiff has not responded to that order, and no additional information regarding service information for defendant David has been submitted. Plaintiff was cautioned that failure to effect service may result in the dismissal of unserved defendants pursuant to Federal Rule of Civil Procedure 4(m).

Rule 4(m) provides, in part, that "[i]f a defendant is not served within 120 days after the complaint is filed, the court -- on motion or on its own after notice to the plaintiff -- must dismiss the action without prejudice against that defendant or order that service may be made within a specified time." Fed. R. Civ. Proc. 4(m). Here, plaintiff's complaint was filed on April 13, 2009. Service was authorized on May 6, 2009, and the United States Marshal was directed to complete service on June 1, 2009. Service as to defendant David was returned unexecuted on September 21, 2009. Thus, more than 120 days have passed since the filing of the complaint, as well as the attempted service of defendant David. Plaintiff has not provided any additional information for which the United States Marshal to attempt additional service on defendant David.

Accordingly, the undersigned finds it appropriate to dismiss the unserved defendant from this action, pursuant to Rule 4(m).

Based on the foregoing, the undersigned recommends that defendant David be dismissed from this action for failure to effect timely service.

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 14 days after being served with these findings and recommendations, any party may file written objections with the court. Responses to objections shall be filed within 14 days after service of objections. Failure to file objections within the specified time may waive the right to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

20110421

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