Opinion
No. 2:11-cv-1138 MCE EFB P
02-26-2013
JAMAAL THOMAS, Plaintiff, v. ANTIPOV, et al., Defendants.
FINDINGS AND RECOMMENDATIONS
Plaintiff is a prisoner proceeding in forma pauperis and without counsel in a civil rights action pursuant to 42 U.S.C. § 1983. The U.S. Marshal was unable to serve defendant "Dr. John Ma" with process was because defendant Ma could not be located based on the information provided by plaintiff. See Dckt. No. 55. On October 17, 2012, the court directed plaintiff to provide new instructions for service of process. On February 12, 2013, plaintiff informed the court that he had obtained new information about where defendant Ma could be served with process. See Dckt. No. 64. However, plaintiff has not actually provided new information. Rather, plaintiff requests that the U.S. Marshal attempt service using the same inadequate information that was relied upon in the initial attempt to serve defendant Ma. See Dckt. Nos. 55, 64 at 4, ¶ 3. The court will not direct the U.S. Marshal to attempt serving defendant Ma based on the same, insufficient instructions. Plaintiff has had ample time to locate defendant Ma for service, and has been warned that failure to provide new instructions or to show good cause for such failure would result in a recommendation that this action be dismissed as to defendant Ma. See Fed. R. Civ. P. 4(m) (service of process must be effected within 120 days of the filing of the complaint unless plaintiff demonstrates good cause).
Accordingly, it is hereby RECOMMENDED that defendant Ma 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 fourteen 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." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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EDMUND F. BRENNAN
UNITED STATES MAGISTRATE JUDGE