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David Poe v. Sgt. Huckabay

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


January 6, 2012

DAVID POE,
PLAINTIFF,
v.
SGT. HUCKABAY, ET AL., DEFENDANTS.

ORDER ADOPTING FINDINGS AND RECOMMENDATION DISMISSING DEFENDANT GALVAN FROM ACTION (ECF No. 93)

ORDER

Plaintiff David Poe ("Plaintiff"), an inmate in the custody of the California Department of Corrections and Rehabilitation ("CDCR"), is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

This action proceeds on Plaintiff's Third Amended Complaint, filed November 30, 2009, against fourteen defendants. (ECF No. 1.) Because Plaintiff is proceeding in forma pauperis, the Court appointed the United States Marshal to serve each Defendant with a summons and Complaint. Fed. R. Civ. Pro. 4(c)(2). The summons for Defendant Galvan was returned to the Court unexecuted. (ECF No. 47.) The Court then ordered that Plaintiff provide additional information to assist the Marshal in effectuating service. (ECF No. 65.) Plaintiff did so, and service was attempted again. (ECF Nos. 67 & 70.) However, the Marshal was unable to effectuate service on Defendant Galvan again. (ECF No. 77.) Thus, because Plaintiff was unable to provide sufficient information for service, the Magistrate Judge recommended dismissal of Defendant Galvan from the action. (ECF No. 93.) No objections to the Findings and Recommendation were filed.

The matter was referred to a United State Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On September 2, 2011, the Magistrate Judge filed a Findings and Recommendation recommending that Defendant Galvan be dismissed from the action for failure to serve. (ECF No. 93.) The Magistrate Judge found that Plaintiff had failed to fulfill his burden of providing the Marshal's service with sufficient information to serve a defendant. (Id.)

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings and Recommendation to be supported by the record and by proper analysis.

Accordingly, IT IS HEREBY ORDERED that:

1. The Findings and Recommendation, filed September 2, 2011, is ADOPTED; and

2. Defendant Galvan is DISMISSED from the action. IT IS SO ORDERED.

CHIEF UNITED STATES DISTRICT JUDGE

20120106

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