Williams v. Harrington et al

Filing 136

ORDER Dismissing Defendant D. Jayvinder from this Action without Prejudice signed by Chief Judge Lawrence J. O'Neill on 02/15/2017. (Flores, E)

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1 2 UNITED STATES DISTRICT COURT 3 EASTERN DISTRICT OF CALIFORNIA 4 5 6 Plaintiff, 7 ORDER DISMISSING DEFENDANT D. JAYVINDER FROM THIS ACTION WITHOUT PREJUDICE (ECF NOS. 126 & 135) v. 8 9 Case No. 1:12-cv-00226-LJO-EPG (PC) MARCUS R. WILLIAMS, KELLY HARRINGTON, et al., Defendants. 10 11 12 I. RELEVANT PROCEDURAL HISTORY 13 Marcus Williams ("Plaintiff") is a state prisoner proceeding pro se and in forma 14 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On February 17, 2012, 15 Plaintiff commenced this action by filing a complaint. 16 cognizable claims against seven defendants (ECF Nos. 10, 16, 20, & 22), and, after the 17 appropriate service documents were completed and returned (ECF No. 23), ordered the United 18 States Marshal Service (“the Marshal”) to serve the defendants (ECF No. 24). (ECF No. 1). The Court found 19 Because there was no information before the Court as to whether defendant D. 20 Jayvinder had ever been served, on October 21, 2016, the Court gave Plaintiff the option to 21 have the Marshal re-serve defendant D. Jayvinder. (ECF No. 110). On November 9, 2016, 22 Plaintiff informed the Court that he wanted to have the Marshal re-serve defendant D. 23 Jayvinder. (ECF No. 112). Once Plaintiff submitted the appropriate service documents, the 24 presiding magistrate judge issued an order directing the Marshal to serve process upon 25 defendant D. Jayvinder. (ECF No. 118). On January 9, 2017, the Marshal filed a return of 26 service unexecuted, indicating that the California Department of Corrections and Rehabilitation 27 (“CDCR”) had nobody by the name of D. Jayvinder in their records. 28 Accordingly, the presiding magistrate judge issued an order to show cause, directing Plaintiff to 1 (ECF No. 123). 1 show cause why the presiding magistrate judge should not issue findings and 2 recommendations, recommending that defendant D. Jayvinder be dismissed from this action 3 without prejudice. (ECF No. 126). 4 On February 13, 2017, Plaintiff filed a motion to dismiss defendant D. Jayvinder 5 without prejudice for failure to locate. (ECF No. 135). According to Plaintiff, he is currently 6 unable to locate defendant D. Jayvinder. 7 dismissed from the action without prejudice “until said time that defendant Doe can be properly 8 identified and located.” Plaintiff asks that defendant D. Jayvinder be 9 The Court will dismiss defendant D. Jayvinder from this action without prejudice. The 10 Court notes that if Plaintiff does locate defendant D. Jayvinder he will need to file a motion for 11 leave to have defendant D. Jayvinder served. If this case is resolved against the remaining 12 defendants before defendant D. Jayvinder is located, the case will be closed. 13 14 Accordingly, based on the foregoing, IT IS ORDERED that defendant D. Jayvinder is DISMISSED from this action, without prejudice. 15 16 17 18 IT IS SO ORDERED. Dated: /s/ Lawrence J. O’Neill _____ February 15, 2017 UNITED STATES CHIEF DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 2

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