Alfaro v. Tilton et al

Filing 39

ORDER DISMISSING DEFENDANT J. A. McKINNEY; DIRECTING CLERK TO REISSUE SUMMONSES. All claims against Defendant J. A. McKinney are DISMISSED without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. The Clerk shall terminate this McKinney from this action. ***McKinney terminated. The Clerk of the Court shall reissue summons and the United States Marshal shall serve, without prepayment of fees, a copy of the complaint in this matter,all attachments thereto, a copy of the Cou rt Order filed February 7, 2011, (Docket No. 4), and a copy of this order upon Defendants D. Spear, Everett W. Fisher, Daniel L. Smith and Special Agent Marquez at the "Office of Correctional Safety Division of Adult Institutions Dept. Of Corrections and Rehabilitation," (see Docket No. 28), and upon Defendant D. T. Hawkes at the Deuel Vocational Institution, (see Docket No. 29). The Clerk shall also mail a courtesy copy of this order to the California Attorney General's Office. Signed by Judge Edward J. Davila on 6/8/2011. (ecg, COURT STAFF) (Filed on 6/10/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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CESAR ALFARO,
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Plaintiff,
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vs.
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D. HIGGERSON, et al.,
Defendants.

No. C 10-04416 EJD (PR)

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ORDER DISMISSING DEFENDANT J.
A. McKINNEY; DIRECTING CLERK
TO REISSUE SUMMONSES

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Plaintiff, an inmate at the Pelican Bay State Prison (“PBSP”) in Crescent City,

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California, filed a pro se civil rights complaint under 42 U.S.C. § 1983, challenging the

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conditions of his confinement. The Court ordered service of Plaintiff’s complaint upon

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the named defendants. (See Docket No. 4.) On March 14, 2011, the summonses for

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Defendants D. Spear, Everett W. Fisher, D. T. Hawkes, Daniel L. Smith, McKinney and

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Marquez were returned with explanatory remarks. (See Docket Nos. 13, 14, 15, 16, 17 &

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23.) The Court directed Plaintiff to provide accurate current locations for Spear, Fisher,

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Hawkes and Smith, and more identification information for McKinney and Marquez or

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face dismissal of the claims against these Defendants with prejudice pursuant to Rule

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4(m) of the Federal Rules of Civil Procedure. (See Docket No. 25.)

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Plaintiff has filed a response to the Court’s order, providing a current location for

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Spear, Fisher, Smith, and Hawkes. (Docket Nos. 28 & 29.) Instead of providing

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additional identification information for Marquez, Plaintiff has provided a different
Order Directing P to locate Ds; Reissuing Summonses
P:\PRO-SE\SJ.EJD\CR.10\Alfaro04416_reissue-4m.wpd

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location where he may be served. (Docket No. 28.) With respect to McKinney, Plaintiff

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states that he is no longer employed by CDCR and that no badge number is available

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through PBSP. (Docket No. 29.) Accordingly, McKinney has not been served. The

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Court will reissue summons to Spear, Fisher, Smith, Hawkes and Marquez with the

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information provided by Plaintiff. However, because Plaintiff has failed to provide an

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accurate current location for McKinney, who is no longer at PBSP, the claims against this

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defendant are DISMISSED without prejudice pursuant to Rule 4(m).

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CONCLUSION

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For the reasons stated above, the Court orders as follows:

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1.

All claims against Defendant J. A. McKinney are DISMISSED without

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prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. The Clerk shall

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terminate this McKinney from this action.

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2.

The Clerk of the Court shall reissue summons and the United States

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Marshal shall serve, without prepayment of fees, a copy of the complaint in this matter,

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all attachments thereto, a copy of the Court Order filed February 7, 2011, (Docket No. 4),

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and a copy of this order upon Defendants D. Spear, Everett W. Fisher, Daniel L.

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Smith and Special Agent Marquez at the “Office of Correctional Safety Division of

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Adult Institutions Dept. Of Corrections and Rehabilitation,” (see Docket No. 28), and

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upon Defendant D. T. Hawkes at the Deuel Vocational Institution, (see Docket No. 29).

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The Clerk shall also mail a courtesy copy of this order to the California Attorney

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General’s Office.

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3.

Defendants shall file a motion for summary judgment or other dispositive

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motion with respect to the claims in the complaint found to be cognizable, and briefing

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shall proceed thereafter, in accordance with the schedule and instructions set forth in the

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Court’s Order of Service, filed February 7, 2011, (Docket No. 4).

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DATED:

June 8, 2011

EDWARD J. DAVILA
United States District Judge

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Order Directing P to locate Ds; Reissuing Summonses
P:\PRO-SE\SJ.EJD\CR.10\Alfaro04416_reissue-4m.wpd

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

CESAR ALFARO,

Case Number: CV10-04416 EJD

Plaintiff,

CERTIFICATE OF SERVICE

v.
D. HIGGERSON, et al.,
Defendants.

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
6/10/2011
That on
, I SERVED a true and correct copy(ies) of the
attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s)
hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into
an inter-office delivery receptacle located in the Clerk's office.

Cesar Alfaro E-68257
Pelican Bay State Prison
P. O. Box 7500
Crescent City, CA
Dated:

6/10/2011
/s/

Richard W. Wieking, Clerk
By: Elizabeth Garcia, Deputy Clerk