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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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ORDER DISMISSING DEFENDANT D.
JAYVINDER FROM THIS ACTION
WITHOUT PREJUDICE
(ECF NOS. 126 & 135)

v.

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Case No. 1:12-cv-00226-LJO-EPG (PC)

MARCUS R. WILLIAMS,

KELLY HARRINGTON, et al.,
Defendants.

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I.

RELEVANT PROCEDURAL HISTORY

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Marcus Williams ("Plaintiff") is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On February 17, 2012,

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Plaintiff commenced this action by filing a complaint.

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cognizable claims against seven defendants (ECF Nos. 10, 16, 20, & 22), and, after the

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appropriate service documents were completed and returned (ECF No. 23), ordered the United

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States Marshal Service (“the Marshal”) to serve the defendants (ECF No. 24).

(ECF No. 1).

The Court found

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Because there was no information before the Court as to whether defendant D.

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Jayvinder had ever been served, on October 21, 2016, the Court gave Plaintiff the option to

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have the Marshal re-serve defendant D. Jayvinder. (ECF No. 110). On November 9, 2016,

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Plaintiff informed the Court that he wanted to have the Marshal re-serve defendant D.

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Jayvinder. (ECF No. 112). Once Plaintiff submitted the appropriate service documents, the

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presiding magistrate judge issued an order directing the Marshal to serve process upon

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defendant D. Jayvinder. (ECF No. 118). On January 9, 2017, the Marshal filed a return of

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service unexecuted, indicating that the California Department of Corrections and Rehabilitation

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(“CDCR”) had nobody by the name of D. Jayvinder in their records.

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Accordingly, the presiding magistrate judge issued an order to show cause, directing Plaintiff to
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(ECF No. 123).

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show cause why the presiding magistrate judge should not issue findings and

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recommendations, recommending that defendant D. Jayvinder be dismissed from this action

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without prejudice. (ECF No. 126).

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On February 13, 2017, Plaintiff filed a motion to dismiss defendant D. Jayvinder

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without prejudice for failure to locate. (ECF No. 135). According to Plaintiff, he is currently

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unable to locate defendant D. Jayvinder.

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dismissed from the action without prejudice “until said time that defendant Doe can be properly

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identified and located.”

Plaintiff asks that defendant D. Jayvinder be

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The Court will dismiss defendant D. Jayvinder from this action without prejudice. The

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Court notes that if Plaintiff does locate defendant D. Jayvinder he will need to file a motion for

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leave to have defendant D. Jayvinder served. If this case is resolved against the remaining

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defendants before defendant D. Jayvinder is located, the case will be closed.

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Accordingly, based on the foregoing, IT IS ORDERED that defendant D. Jayvinder is
DISMISSED from this action, without prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

February 15, 2017

UNITED STATES CHIEF DISTRICT JUDGE

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