Opinion
2:19-cv-2552 DJC DB P
11-08-2023
ELADIO RODRIGUEZ, Plaintiff, v. G. KNIGHT, et al., Defendants.
FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES, UNITED STATES MAGISTRATE JUDGE.
Plaintiff is a state inmate proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that defendants used excessive force against him, failed to protect him, and conspired to violate his rights during the disciplinary hearing process.
By order dated June 9, 2020, the undersigned determined the complaint stated potentially cognizable claims and directed E-Service of the complaint on defendants Knight, Pasioles, Ancheta, Paul, Junes, Coder, Achterberg, Vina, Farran, Canela, and Smith. (ECF No. 7.) Defendants Knight, Pasioles, Ancheta, Junes, Coder, Achterberg, Vina, Farran, Canela, and Smith filed a notice of intent to waive service. (ECF No. 12.) Defendant Paul filed a notice of intent to not waive service. (ECF No. 13.) Defendants Knight, Pasioles, Ancheta, Junes, Coder, Achterberg, Vina, Farran, Canela, and Smith filed an answer (ECF No. 18), and this action was referred to the court's Post-Screening ADR (Alternative Dispute Resolution) Project and stayed for 120 days. (ECF No. 21.)
When the stay was lifted on July 9, 2021, the court noted that defendant Paul had not been served and directed plaintiff to provide additional information to serve defendant Paul. (ECF No. 33 at 1-2.) Plaintiff was directed to complete and submit forms to effect service within sixty days of the court's order. (Id. at 5.) Plaintiff sought and obtained two sixty-day extensions of time to submit service documents. (ECF Nos. 35, 37, 46, 47.)
Plaintiff failed to submit service documents, and the undersigned provided plaintiff one final opportunity to submit service documents and serve defendant Paul. (ECF No. 53 at 1-2.) By order dated January 24, 2022, plaintiff was warned that failure to serve defendant Paul prior to the close of discovery would result in a recommendation that Paul be dismissed from this action. (Id. at 2.) Plaintiff did not request additional time to comply or otherwise respond to this order. Discovery in this case has now closed, and plaintiff has agreed to settle his claims as to the remaining defendants. (ECF No. 97.) Because plaintiff failed to serve defendant Paul prior to the close of discovery, the undersigned will recommend that defendant Paul be dismissed pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.
For the reasons set forth above, IT IS HEREBY RECOMMENDED that defendant Paul be dismissed from this action without prejudice pursuant to Rule 4(m).
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)(1). Within thirty (30) days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate Judge's Findings and Recommendations.” Any response to the objections shall be served and filed within fourteen (14) days after service of the objections. The parties are 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).