Sotelo v. Birring, et al.

Filing 106

ORDER REQUIRING PLAINTIFF to Effect Service on Defendant Green Within Sixty (60) Days, signed by Magistrate Judge Sheila K. Oberto on 8/1/2012. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ROBERTO A. SOTELO,

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CASE NO. 1:08-cv-01342-LJO-SKO

Plaintiff,

ORDER REQUIRING PLAINTIFF TO EFFECT
SERVICE ON DEFENDANT GREEN WITHIN
SIXTY DAYS

v.
T. BIRRING, et al.,

(Docs. 87 and 105)
Defendants.
/

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Plaintiff Roberto A. Sotelo, a state prisoner proceeding in forma pauperis, filed this civil

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rights action pursuant to 42 U.S.C. § 1983 on September 10, 2008. This action is proceeding on

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Plaintiff’s second amended complaint, filed March 22, 2012, against Defendants Birring, Diep,

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Coleman, and Green for acting with deliberate indifference to Plaintiff’s medical needs, in violation

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of the Eighth Amendment.

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On April 4, 2012, the Court directed the United States Marshal to serve Defendant Green at

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his address of record with the California Department of Consumer Affairs, Physician Assistant

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Committee. 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). Defendant Green did not waive service

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and in attempting to effect personal service at the Missouri address, the Marshal was informed that

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Defendant Green was not at the residence, his location was unknown, and he was possibly working

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in Harrison, Arkansas. (Doc. 105.)

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Given that Defendant Green holds an active physicians assistant license from the State of

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California, the Court expresses skepticism that a full and accurate disclosure was made to the

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Marshal on July 12, 2012. However, the Court and the Marshal can do no more at this juncture, as
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service on Defendant Green at his known, available address was unsuccessful, Walker v. Sumner,

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14 F.3d 1415, 1422 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472,

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115 S.Ct. 2293 (1995), and neither the Marshal nor the Court is authorized to undertake further

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investigation on Plaintiff’s behalf, Tedder v. Odel, 890 F.2d 210, 211-12 (9th Cir. 1989).

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The Court will grant Plaintiff sixty days within which to effect service on Defendant Green.

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Plaintiff’s counsel shall contact Sujean Park, ADR and Pro Bono Program Director, at (916) 930-

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4278 or [e-mail] to obtain preauthorization of any anticipated reasonable expenses

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which will be incurred in locating and serving Defendant Green, including but not limited to the

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services of a private investigator and/or process server. Should Defendant Green be located and

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served and should there be evidence submitted that he attempted to evade service of process, the

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Court will take appropriate action at that time.

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Accordingly, Plaintiff is HEREBY ORDERED to effect service on Defendant Barry J. Green

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within sixty (60) days from the date of service of this order, and preauthorization of anticipated

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expenses shall be sought from Sujean Park. Fed. R. Civ. P. 4(m).

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IT IS SO ORDERED.

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Dated:
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August 1, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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