The opinion of the court was delivered by: Justin L. Quackenbush Senior United States District Judge
ORDER DISMISSING DEFENDANT DAVID AND ORDER RE: SUBSTITUTION
On September 13, 2010, Defendants filed their response addressing the matters in the court's August 30, 2010 Order. Ct. Rec. 47. After reviewing this response the court enters this supplemental Order regarding Defendants David and Director of Corrections.
1. Defendant David. Defendants have confirmed that Defendant David, who was a contract physician's assistant at High Desert State Prison, is no longer employed by the CDCR in any capacity and is presently believed to be a civilian physician's assistant under contract with the U.S. Army stationed in Iraq. All claims against Defendant David are DISMISSED without prejudice pursuant to Fed.R.Civ.P 12(b)(2) and (5), for lack of personal jurisdiction and insufficiency of service of process.
2. In the August 30, 2010 Order the court ordered Plaintiff to no later than September 26, 2010:
a. advise the court in writing whether he intends to dismiss his claims against Defendant Chatman and Kimbrell; and
b. Either provide additional information with which the Marshal may attempt to identify and serve Defendant Wisely, utilize the discovery process to seek out information concerning Wisely's identity, or elect to dismiss this action against Wisely.
2. Substitution of Parties. Plaintiff shall also decide whether he wishes to substitute the Secretary of the California Department of Corrections and Rehabilitation, Matthew Cate, for the previously improperly named Defendant, "Director of Corrections." Since its reorganization in 2005, and at all times relevant to this suit, no position with the title "Director of Corrections" existed within the Department of CorrectionS.Ct. Rec. 47. If Plaintiff desires to substitute the Secretary of the CDCR, Plaintiff shall:
a. File a Notice of Substitution substituting the Secretary of the CDCR for the previously named "Director of Corrections;
b. Submit to the court a completed summons and USM-285 form for Matthew Cate, P.O. Box 942883, Sacramento, CA 94283.
Upon submission of these documents, the court will direct the U.S. Marshals to serve Mr. Cate.
3. Other Pending Matters. The court continues to await response from the U.S. Marshal's Office regarding the attempts to effectuate service upon Defendants Montgomery, Stailey, and Thompson. The court has also taken the Defendants' Motion to Dismiss (Ct. Rec. 32) under advisement.
IT IS SO ORDERED. The Clerk shall enter this Order and furnish copies to the United States Marshal for the Eastern District of California, to the Plaintiff, and to defense counsel.
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