Williams v. Harrington et al
ORDER Dismissing Defendant D. Jayvinder from this Action without Prejudice signed by Chief Judge Lawrence J. O'Neill on 02/15/2017. (Flores, E)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
ORDER DISMISSING DEFENDANT D.
JAYVINDER FROM THIS ACTION
(ECF NOS. 126 & 135)
Case No. 1:12-cv-00226-LJO-EPG (PC)
MARCUS R. WILLIAMS,
KELLY HARRINGTON, et al.,
RELEVANT PROCEDURAL HISTORY
Marcus Williams ("Plaintiff") is a state prisoner proceeding pro se and in forma
pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On February 17, 2012,
Plaintiff commenced this action by filing a complaint.
cognizable claims against seven defendants (ECF Nos. 10, 16, 20, & 22), and, after the
appropriate service documents were completed and returned (ECF No. 23), ordered the United
States Marshal Service (“the Marshal”) to serve the defendants (ECF No. 24).
(ECF No. 1).
The Court found
Because there was no information before the Court as to whether defendant D.
Jayvinder had ever been served, on October 21, 2016, the Court gave Plaintiff the option to
have the Marshal re-serve defendant D. Jayvinder. (ECF No. 110). On November 9, 2016,
Plaintiff informed the Court that he wanted to have the Marshal re-serve defendant D.
Jayvinder. (ECF No. 112). Once Plaintiff submitted the appropriate service documents, the
presiding magistrate judge issued an order directing the Marshal to serve process upon
defendant D. Jayvinder. (ECF No. 118). On January 9, 2017, the Marshal filed a return of
service unexecuted, indicating that the California Department of Corrections and Rehabilitation
(“CDCR”) had nobody by the name of D. Jayvinder in their records.
Accordingly, the presiding magistrate judge issued an order to show cause, directing Plaintiff to
(ECF No. 123).
show cause why the presiding magistrate judge should not issue findings and
recommendations, recommending that defendant D. Jayvinder be dismissed from this action
without prejudice. (ECF No. 126).
On February 13, 2017, Plaintiff filed a motion to dismiss defendant D. Jayvinder
without prejudice for failure to locate. (ECF No. 135). According to Plaintiff, he is currently
unable to locate defendant D. Jayvinder.
dismissed from the action without prejudice “until said time that defendant Doe can be properly
identified and located.”
Plaintiff asks that defendant D. Jayvinder be
The Court will dismiss defendant D. Jayvinder from this action without prejudice. The
Court notes that if Plaintiff does locate defendant D. Jayvinder he will need to file a motion for
leave to have defendant D. Jayvinder served. If this case is resolved against the remaining
defendants before defendant D. Jayvinder is located, the case will be closed.
Accordingly, based on the foregoing, IT IS ORDERED that defendant D. Jayvinder is
DISMISSED from this action, without prejudice.
IT IS SO ORDERED.
/s/ Lawrence J. O’Neill _____
February 15, 2017
UNITED STATES CHIEF DISTRICT JUDGE
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