Cienfuegos v. Gipson

Full title: LEO CIENFUEGOS, Plaintiff, v. GIPSON, et al., Defendants.

Court: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Date published: Sep 30, 2015

Case No. 1:14-cv-00215 AWI DLB PC (E.D. Cal. Sep. 30, 2015)

Opinion

Case No. 1:14-cv-00215 AWI DLB PC

09-30-2015

LEO CIENFUEGOS, Plaintiff, v. GIPSON, et al., Defendants.

ORDER MODIFYING AND ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING DEFENDANT REIFSCHNEIDER FOR FAILURE TO EFFECTUATE SERVICE OF PROCESS (Document 25)

Plaintiff Leo Cienfuegos ("Plaintiff") is a California state prisoner proceeding pro se in this action pursuant to 42 U.S.C. § 1983.¹ Plaintiff filed his complaint on February 18, 2014, and a First Amended Complaint on August 21, 2014. On February 9, 2015, Plaintiff was ordered to serve Defendants Perez, Nadeau and Reifschneider. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

1 Plaintiff paid the filing fee and is not proceeding in forma pauperis.

On August 3, 2015, the Magistrate Judge issued Findings and Recommendations that the action be DISMISSED for Plaintiff's failure to effectuate service of process of the summons and First Amended Complaint pursuant to Federal Rule of Civil Procedure 4(m). The Findings and Recommendations were served on Plaintiff and contained notice that any objections were to be filed within thirty (30) days.

During the objection period, Defendants Perez and Nadeau filed a motion to extend time to file a responsive pleading, indicating that they had been served. Defendants Perez and Nadeau subsequently filed an answer on August 21, 2015.

As to Defendant Reifschneider, Plaintiff has not filed objections to the Findings and Recommendations, nor has Defendant Reifschnedier made an appearance in this action.

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 that the Findings and Recommendations should be modified to reflect that Plaintiff has successfully served Defendants Perez and Nadeau. However, as to Defendant Reifschneider, the analysis is proper and supported by the record.

Accordingly, IT IS HEREBY ORDERED that:

1. The Findings and Recommendations, filed August 3, 2015, are MODIFIED as noted above and ADOPTED AS MODIFIED; and

2. Defendant Reifschneider is DISMISSED FROM THIS ACTION for Plaintiff's failure to effectuate service of process.

IT IS SO ORDERED. Dated: September 30, 2015

/s/_________

SENIOR DISTRICT JUDGE