Opinion
CASE NO. 1:09-CV-00657-AWI-DLB PC
01-11-2012
ROBERT JAMES DIXON, Plaintiff, v. JAMES A. YATES, et al., Defendants.
FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF ACTION
OBJECTIONS, IF ANY, DUE WITHIN EIGHTEEN DAYS
Plaintiff Robert James Dixon ("Plaintiff") is a California state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's first amended complaint, filed October 15, 2009. Doc. 1. On April 30, 2010, the Court directed the United States Marshal to effect service on two Defendants, including Defendant Diep. Doc. 18. On August 20, 2010, the United States Marshal returned the summons unexecuted. Doc. 19. On February 2, 2011, the Court issued an order directing the United States Marshal to re-attempt service of process on Defendant Diep. Doc. 32. The Marshal Service was unable to locate Defendant Diep, and returned the summons unexecuted on December 21, 2011. Doc. 47. Defendant Diep is the only Defendant remaining in this action.
Pursuant to Rule 4(m),
If 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 be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.Fed. R. Civ. P. 4(m).
Where a pro se plaintiff fails to provide the Marshal with accurate and sufficient information to effect service of the summons and complaint, the Court's sua sponte dismissal of the unserved defendants is appropriate. Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 1994) (quoting Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990)), abrogated in part on other grounds, Sandin v. Conner, 515 U.S. 472 (1995). The United States Marshal has now twice attempted to effect service of process on Defendant Diep this action, but was unsuccessful. The forwarding address provided for Defendant Diep is a vacant lot.
Accordingly, it is HEREBY RECOMMENDED that Defendant Diep be dismissed from this action without prejudice for failure to effect service of process pursuant to Federal Rule of Civil Procedure 4(m), and this action be dismissed.
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within eighteen (18) days after being served with these Findings and Recommendations, the parties may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." 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, 1156-57 (9th Cir. 1991).
IT IS SO ORDERED.
、 Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE