Uvalles v. Jaquez et al

Filing 140

ORDER OF DISMISSAL of Claims Against Unserved Defendants Without Prejudice; Directing Plaintiff to Locate Unserved Defendants. Defendants B. Jones, D. Fabela and J. Hernandez terminated. Signed by Judge Ronald M. Whyte on 6/24/11. (jg, COURT STAFF) (Filed on 6/24/2011)

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*E-FILED - 6/24/11*
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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RAUL UVALLES,
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Plaintiff,
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v.
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FRANCISCO JACQUEZ, Warden, et al.,
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Defendants.
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No. C 09-5221 RMW (PR)
ORDER OF DISMISSAL OF
CLAIMS AGAINST UNSERVED
DEFENDANTS WITHOUT
PREJUDICE; DIRECTING
PLAINTIFF TO LOCATE
UNSERVED DEFENDANTS

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Plaintiff, a state prisoner proceeding pro se, filed a civil rights complaint pursuant

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to 42 U.S.C. § 1983. On April 28, 2009, the court issued summons to all named defendants. On

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September 13, 2010, plaintiff provided more information on ten unserved defendants in order to

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assist the Marshal in locating them for proper service. On November 10, 2010, the court

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directed the clerk to re-issue summonses on those ten defendants. The court also directed

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plaintiff to provide additional information so that the Marshal could serve the remaining three

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unserved defendants, or face dismissal of those three defendants.

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The court’s order cautioned plaintiff that the failure to provide the court with accurate

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and current information on defendants D. Fabela, B. Jones, and J. Hernandez so that the Marshal

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could effect service would result in dismissal without prejudice of those defendants. More than

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thirty days from the date of that order have passed, and plaintiff has not provided the court with

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Order of Dismissal of Claims Against Unserved Defendants Without Prejudice; Directing Plaintiff to Locate
Unserved Defendants
P:\PRO-SE\SJ.Rmw\CR.09\Uvalles221dis4mandlocate.wpd

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any further information on defendants D. Fabela, B. Jones, or J. Hernandez. Accordingly,

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defendants D. Fabela, B. Jones, or J. Hernandez are DISMISSED from this action without

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prejudice.

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On December 27, 2010, summonses were returned unexecuted for defendants Henderson,

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Duncan, Dewitt, Gonzalez, Shaw, and Palaccio because the facility had no information on those

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defendants, and thus, would not accept service. Plaintiff is reminded that because he has not

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provided sufficient information to allow the Marshal to locate and serve the above named

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defendants, plaintiff must remedy the situation or face dismissal of his claims against said

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defendants without prejudice. See Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 1994),

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overruled on other grounds by Sandin v. Connor, 515 U.S. 472 (1995).
Accordingly, plaintiff must provide the court with accurate and current information for

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defendants Sgt. Henderson, Charles Duncan, D. Dewitt, Correctional Officer J. Gonzalez,

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Correctional Officer J. Shaw, and Correctional Officer F. Palaccio such that the Marshal is able

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to effect service upon them. If plaintiff fails to provide the court with the accurate and current

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information so that the Marshal can effect service, within thirty (30) days of the date this order

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is filed, plaintiff’s claim against the above named defendants will be dismissed pursuant to Rule

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4(m) of the Federal Rules of Civil Procedure; the dismissal will be without prejudice to plaintiff

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refiling his complaint with such information.

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IT IS SO ORDERED.
6/24/11
DATED: _________________

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RONALD M. WHYTE
United States District Judge

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Order of Dismissal of Claims Against Unserved Defendants Without Prejudice; Directing Plaintiff to Locate
Unserved Defendants
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P:\PRO-SE\SJ.Rmw\CR.09\Uvalles221dis4mandlocate.wpd