(PC) Israel v. Shmary ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 AKIVA AVIKAIDA ISRAEL, No. 2:21-cv-0262-TLN-EFB P 11 Plaintiff, 12 v. FINDINGS AND RECOMMENDATIONS 13 RABBI SHMARY, et al., 14 Defendants. 15 16 Plaintiff is a state prisoner proceeding pro se in an action brought under 42 U.S.C. § 1983. 17 The United States Marshal previously returned process directed to defendant Alex Lainez, who 18 plaintiff alleges was employed as Chaplain/Religious Review Committee Member at Mule Creek 19 State Prison on or around September 2020 to September 2021. The unexecuted summons stated 20 that the California Department of Corrections and Rehabilitation was unable to locate an 21 employee by that name. ECF No. 37. 22 On March 29, 2022, and again on May 3, 2022, the court instructed plaintiff to provide 23 new information for service of process on defendant Lainez, and warned plaintiff that failure to 24 do so or show cause for such failure would result in a recommendation that defendant Lainez be 25 dismissed pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. ECF Nos. 38 & 43; see 26 also Fed. R. Civ. P. 4(m) (service of process must be effected within 90 days of the filing of the 27 complaint unless plaintiff demonstrates good cause). The time for acting has passed and plaintiff 28 has not responded to the court’s most recent order. ] Plaintiff has had several opportunities to submit information about where defendant 2 || Lainez can be served and has been warned that Rule 4(m) requires that service of process be 3 || effected within 90 days of the filing of the complaint absent a showing of good cause. The time 4 | for serving defendant Lainez has expired and plaintiff has failed to demonstrate the requisite good 5 || cause to avoid dismissal under Rule 4(m). 6 Accordingly, it is hereby RECOMMENDED that defendant Lainez be dismissed. See 7 || Fed. R. Civ. P. 4(m). 8 These findings and recommendations are submitted to the United States District Judge 9 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 10 || after being served with these findings and recommendations, any party may file written 11 || objections with the court and serve a copy on all parties. Such a document should be captioned 12 || “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 13 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 14 | Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 15 || Dated: June 13, 2022. 16 □□ PDEA 7 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28