Mendoza v. Spadaro et al.

Filing 37

ORDER signed by Magistrate Judge Carolyn K. Delaney on 12/5/2016 DISMISSING defendant Boyt from this action without prejudice.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TORIBIO MENDOZA,

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No. 2:16-cv-0855 CKD P

Plaintiff,
v.

ORDER

SPADARO, et al.,
Defendants.

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Plaintiff is a California prisoner proceeding pro se with an action for violation of civil

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rights under 42 U.S.C. § 1983. Plaintiff has consented to have all matters in this action before a

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United States Magistrate Judge. See 28 U.S.C. § 636(c).

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On May 11, 2016, the court approved service of process for defendant Boyt and instructed

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plaintiff to provide the court with an address where defendant Boyt could be served. Plaintiff

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indicated that defendant Boyt could be served at High Desert State Prison. When the U.S.

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Marshal attempted to serve defendant Boyt there, prison officials informed the Marshal that there

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was no person named “Boyt” that worked there. ECF No. 25. Plaintiff was given a second

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opportunity to provide the court with an address where defendant Boyt could be served. Plaintiff

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again indicated that Boyt could be served at High Desert. The Marshal’s attempt to serve

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defendant Boyt a second time at High Desert was again unsuccessful and this time prison officials

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indicated there has never been an employee named “Boyt” at High Desert. ECF No. 36.
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Because it does not appear that defendant “Boyt” can be served at High Desert, and it does

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not appear plaintiff can provide an alternate address for service, defendant Boyt will be dismissed

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without prejudice. See Fed. R. Civ. P. 4(m). It is possible that the person plaintiff identifies as

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“Boyt” in his complaint might have another name. If plaintiff learns that this is the case at some

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point, he is free to file a motion for leave to amend his complaint along with a proposed amended

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complaint. If the court finds good cause for permitting leave to amend, and that plaintiff states a

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claim upon which relief can be granted against the new defendant, the court will consider

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ordering service of process on that defendant at that time.

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In accordance with the above, IT IS HEREBY ORDERED that defendant Boyt is

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dismissed from this action without prejudice.

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Dated: December 5, 2016

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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mend0855.dis

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