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Perfino v. Hardy

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 12, 2010

CARLOS PERFINO AND JESS ZURANICH, PLAINTIFFS,
v.
STEVE HARDY, DIRECTOR; ELIZABETH GAVIA; LORI AJAX; JUAN G. AYALA; *FN1 JUAN G. AYALA AND HERIBERTO AND HERIBERTO GARCIA, GARCIA DEFENDANTS.

The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER VACATING HEARING SCHEDULED FOR MARCH 15,2010 AND DISMISSING DEFENDANTS

On February 26, 2010, an order issued requiring Defendants to respond to Plaintiffs assertion "that the State [D]efendants have changed their position on whether Section 62 applies to correctional officers." Further, the order required Plaintiffs to explain "why [Defendant Juan G. Ayala ("Ayala"),]" one of two Defendants that have not been served with process in this action, should not be dismissed under Federal Rule of Civil Procedure 4(m). Plaintiffs previously failed to explain why the other defendant should not be dismissed.

Responses to the order have been filed which eliminate the need for a hearing on these issues. Therefore, the hearing scheduled for March 15, 2010 is VACATED.

Further, since Plaintiffs response includes their agreement "that [Defendants Ayala and Heriberto Garcia] "should be dismissed without prejudice," these Defendants are dismissed without prejudice.

IT IS SO ORDERED.


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