Millner v. Biter

Filing 60

ORDER PROVIDING Plaintiff Additional Time to Serve Defendant Pelago re 55 , 56 signed by Magistrate Judge Stanley A. Boone on 5/12/2015. Plaintiff is granted an additional thirty (30) days to serve Defendant Pelago. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMES W. MILLNER,

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Plaintiff,

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v.
MARTIN BITER, et al.,

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Defendants.

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Case No.: 1:13-cv-02029-SAB (PC)
ORDER PROVIDING PLAINTIFF ADDITIONAL
TIME TO SERVE DEFENDANT PELAGO
[ECF Nos. 55, 56]

Plaintiff James W. Millner is appearing pro se in this civil rights action pursuant to 42 U.S.C. §

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1983.

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This action shall proceed on Plaintiff’s claim of excessive force against Defendants J.

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Anderson, D. Rodriguez, and O. Marroquin; Plaintiff’s failure to protect claim against Defendants W.

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Sweetser, R. Sulier, Pair, and Pelago; and Plaintiff’s claim of deliberate indifference to serious

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medical need in violation of the Eighth Amendment against Defendants J. Anderson, O. Marroquin, D.

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Rodriguez, W. Sweetser, R. Sulier, and Pair.

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Because Plaintiff paid the filing fee and he is not proceeding in forma pauperis in this action,

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he was provided instructions on serving all defendants in accordance with Rule 4 of the Federal Rules

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of Civil Procedure. (ECF No. 33.)

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On May 4, 2015, the summons was returned unexecuted as to Defendant J. Pelago. (ECF No.
55.) On this same date, Plaintiff filed a motion for further instructions on the procedure to serve
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Defendant Pelago. (ECF No. 56.) The affidavit of unsuccessful service states that Deputy Kim

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Foreman, Sheriff’s Aide was unable to personally serve officer J. Pelago at Kern Valley State Prison

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because there was no employee by this name at such location. (ECF No. 55.) Contrary to Plaintiff’s

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claim, Defendant Pelago did not refuse service there simply was no officer by such name at the

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location provided by Plaintiff. Plaintiff is advised that it is his responsibility, not the Courts, to serve

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each of the Defendants in this action. If good cause appears, the Court may extend the time for service

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for an appropriate period. Fed. R. Civ. P. 4(m). A plaintiff may show good cause where, as here, he

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attempted to serve a defendant but has not yet completed it. See Wei v. State of Hawaii, 763 F.2d 370,

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372 (9th Cir. 1985) (applying the good cause standard); Mateo v. M/S KISO, 805 F.Supp. 792, 795

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(N.D. Cal. 1992). Because Plaintiff has attempted, albeit unsuccessfully, to serve Defendant Pelago,

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the Court will grant Plaintiff an extension of thirty days from the date of service of this order to

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attempt further service of process on Pelago. However, Plaintiff is again advised that failure to service

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process on Defendant Pelago will result in dismissal of this Defendant without prejudice.
Accordingly, it is HEREBY ORDERED that Plaintiff is granted thirty (30) days from the date

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of service of this order to attempt further service on Defendant Pelago.

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IT IS SO ORDERED.

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Dated:

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May 12, 2015
UNITED STATES MAGISTRATE JUDGE

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