UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
September 25, 2012
JAMISI JERMAINE CALLOWAY,
MONTGOMERY, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER DISMISSING DOE DEFENDANT FROM ACTION, WITHOUT PREJUDICE (ECF No. 94)
Plaintiff Jamisi Jermaine Calloway ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the first amended complaint, filed December 13, 2007, against Defendants Montgomery, Babb, Bhatt, and Doe for violations of the Eighth Amendment. The deadline to file amended pleadings in this action was June 8, 2012. Plaintiff did not file an amended complaint identifying Defendant Doe. On August 3, 2012, the Magistrate Judge issued an order requiring Plaintiff to show cause why Defendant Doe should not be dismissed from this action. Plaintiff did not respond to the Court's order.
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 Defendant Doe so that the United States Marshal could serve a summons and the complaint. Accordingly, it is HEREBY ORDERED that Defendant Doe is DISMISSED from this action, without prejudice, pursuant to Federal Rule of Civil Procedure 4(m).
IT IS SO ORDERED.
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