UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
May 2, 2011
B. SILVA, ET AL.,
The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
ORDER DISMISSING DOE DEFENDANT FROM ACTION, WITH PREJUDICE
(ECF NO. 89)
Plaintiff Mauwai Farha ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the first amended complaint, filed April 23, 2009, against Defendants B. Silva, V. Pierce, Banks, Wimbly, Williams, Riddle, and John Doe for violations of the Eighth Amendment. The deadline to file amended pleadings in this action was March 17, 2010. Plaintiff did not file an amended complaint identifying John Doe. On March 28, 2011, the Magistrate Judge issued an order requiring Plaintiff to show cause why Defendant John Doe should not be dismissed from this action. Plaintiff filed a response on April 25, 2011. In his response Plaintiff requests that John Doe not be dismissed because he participated in the violation of Plaintiff's rights.
Rule 4(m) of the Federal Rules of Civil Procedure provides, in relevant part:
If a defendant is not served within 120 days after the complaint is filed, the court -on motion or on its own after notice to the plaintiff - must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
Plaintiff has failed to set forth good cause for his failure to identify John Doe so that the United States Marshal could serve a summons and the complaint. Accordingly, it is HEREBY ORDERED that John Doe is DISMISSED from this action, without prejudice, pursuant to Federal Rule of Civil Procedure 4(m).
IT IS SO ORDERED.
© 1992-2011 VersusLaw Inc.