Zuniga v. Jordan et al

Filing 78

ORDER DISMISSING Defendant John Doe From Action, signed by District Judge Anthony W. Ishii on 11/16/2012. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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LARRY ZUNIGA,

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CASE NO. 1:09-cv-01208-AWI-BAM PC
Plaintiff,

ORDER DISMISSING DEFENDANT JOHN DOE
FROM ACTION

v.
(ECF No. 37)

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CHRIS JORDAN, et al.,
Defendants.
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Plaintiff Larry Zuniga (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on

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Plaintiff’s complaint, filed July 13, 2009, against Defendants Berke, Torres, Henderson, Jordan,

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and John Doe for excessive force in violation of the Eighth Amendment. On July 27, 2011, an

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order issued requiring Plaintiff to show cause within thirty days why Defendant John Doe should

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not be dismissed from the action for failure to effect service of process. (ECF No. 37.) Plaintiff

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failed to respond to the order to show cause.

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In his pretrial statement, however, Plaintiff moved for the Doe defendant to not be

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dismissed because Plaintiff stated that he had been unable to view the video due to being

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incarcerated. After reviewing the pre-trial statement, the Court dismissed John Doe as part of the

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pretrial order issued on February 2, 2012. (ECF No. 56) The February 2 pre-trial order was

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vacated on February 9, 2012, and an amended pretrial order was issued on March 22, 2012.

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(ECF No. 57, 60) Inadvertently, the March pre-trial order did not address John Doe. The Court

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will correct that omission and dismiss the Doe Defendant.
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Rule 4(m) of the Federal Rules of Civil Procedure provides, in relevant part:

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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.

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As the Court previously found, Plaintiff has failed to set forth good cause for his failure to

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identify the Doe defendant so that the United States Marshal could serve a summons and the
complaint. Dismissal of the Doe defendant from this action is appropriate.

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Accordingly, IT IS HEREBY ORDERED that John Doe is dismissed from this action,

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without prejudice, pursuant to Federal Rule of Civil Procedure 4(m).

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IT IS SO ORDERED.
Dated:
0m8i78

November 16, 2012
UNITED STATES DISTRICT JUDGE

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