Barrett v. Cate et al

Filing 42

ORDER to SHOW CAUSE Why Defendant McGinnis Should Not Be Dismissed, signed by Magistrate Judge Jennifer L. Thurston on 9/23/2011. Plaintiff's Show Cause Response due by 10/17/2011. (Jessen, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT E. BARRETT,

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Case No. 1:09-cv-01741 LJO JLT (PC)

Plaintiff,

ORDER TO SHOW CAUSE WHY
DEFENDANT MCGINNIS SHOULD NOT
BE DISMISSED

v.

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MATTHEW CATE, et al.,

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Defendants.

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/

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On February 25, 2011, the United States Marshal returned the process directed to Defendant

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McGinnis unserved. (Doc. 21.) The Court therefore ordered Plaintiff to provide further information on

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where Defendant McGinnis could be served. (Doc. 22.) In response, on April 22, 2011, Plaintiff filed

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a motion for assistance from the California Department of Corrections and Rehabilitation in locating

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Defendant McGinnis. (Doc. 30.) The Court granted the motion on June 1, 2011. (Doc. 35.) However,

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as of the date of this order, there has been no indication that the Legal Affairs Division has been able to

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locate Defendant McGinnis.

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In addition, on June 6, 2011, counsel for Defendants filed a declaration outlining Defendants’

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attempts at identifying and locating Defendant McGinnis. (Doc. 37.) According to the declaration,

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counsel personally spoke with the current Chief Medical Officer of California Medical Facility, and the

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Chief Medical Officer indicated that there has been no medical provider named McGinnis at the facility

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since 1993. (Id. at ¶ 5.) Further, counsel has reviewed Plaintiff’s medical records and has been unable
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to find any medical record containing the name McGinnis. (Id. at ¶ 8.)

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In light of the foregoing, it appears that Plaintiff has misidentified this defendant. Accordingly,

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it is HEREBY ORDERED that within twenty-one days of the date of this order, Plaintiff shall show

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cause in writing why Defendant McGinnis should not be dismissed pursuant to Federal Rule of Civil

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Procedure 4(m).

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IT IS SO ORDERED.

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Dated: September 23, 2011
9j7khi

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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