Benyamini v. Mendoza et al

Filing 93

ORDER signed by Magistrate Judge Gregory G. Hollows on 12/16/11 GRANTING plaintiff's 66 motion to compel service, construed as request for judicial intervention or assistance for the purpose of locating the unserved defendants; defendants counsel shall file and serve the appropriate response to this order within 21 days. (See order for details) (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT BENYAMINI,

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Plaintiff,

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vs.

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No. CIV S-09-2602 LKK GGH P

MENDOZA, et al.,

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Defendants.

ORDER
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Plaintiff is a prisoner who is proceeding pro se and in forma pauperis. Plaintiff
seeks relief pursuant to 42 U.S.C. § 1983.
By order filed on June 1, 2011, the court directed the United States Marshal to

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serve the amended complaint on defendants. Process directed to defendant M. Northerner was

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returned unserved as “unable to forward, moved.” The court on September 12, 2011, then

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ordered plaintiff to seek additional information promptly to serve this defendant through

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discovery, the California Public Records Act, Calif. Gov’t. Code § 6250, et seq., or other means

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available to plaintiff and was informed that if access to the required information were denied or

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unreasonably delayed, plaintiff could seek judicial intervention. Thereafter, when plaintiff filed

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the required papers, by order, filed on October 14, 2011, the undersigned again ordered the U.S.

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Marshal to serve the amended complaint on defendant Northerner. On December 12, 2011,
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Process directed to this defendant Northerner was again returned unserved because “unable to

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forward.” However, while the initial unexecuted waiver had a notation dated 6-27-11, indicating

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that defendant Northerner, per California Medical Facility - Vacaville (CMF), was no longer a

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CDCR employee, the later returned unexecuted waiver showed it had been mailed on October

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20, 2011, and in a notation dated 11-30-11 that CMF had terminated defendant Northerner, had

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nevertheless accepted service and attempted to mail the process receipt and return documents,

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including the amended complaint to his last known address and that it was returned two to three

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weeks later with the “unable to forward” notation. See Docket # 53 & # 86. A later notation

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dated 12-12-11 notes that per the CDCR locator, this defendant is listed as located at CMF.

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With regard to defendants Brown, Paul and Hurtado, this court observed in an

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order filed on July 12, 2011, that following the June 1, 2001, order directing service of the

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amended complaint on all defendants, process on these three defendants had been returned

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unserved. The court directed plaintiff to provide additional information by the methods set forth

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above, after which plaintiff returned the required documents, and the court, by order filed on July

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27, 2011, once again directed service upon these defendants. After process was again returned

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unserved as to two of these defendants, Brown and Paul, on August 5, 2011, because neither

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apparently was a known CMF employee, the court by order, filed on September 12, 2011,

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ordered plaintiff to show cause why these two defendants should not be dismissed without

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prejudice pursuant to Fed. R. Civ. P. 4(m). By filing dated September 14, 2011, which plaintiff

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identified as a “motion to compel U.S. Marshal’s service,” plaintiff sought the court’s help in

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locating these individuals after indicating that these defendants had to log in every day at CMF

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when they entered the security housing unit where plaintiff is or was housed and should be easy

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to locate.

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Defendants’ counsel shall query the Department of Corrections and Rehabilitation

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to ascertain the whereabouts of defendants M. Northerner, Brown and Paul. If defendants M.

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Northerner, Brown and Paul are still employed with the Department of Corrections or
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Rehabilitation or any other California state agency, counsel shall provide the business addresses

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to plaintiff. If counsel is otherwise informed of the business addresses of defendants M.

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Northerner, Brown and Paul, counsel shall provide the addresses to plaintiff. In the event that

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counsel, after conducting a good faith inquiry, cannot ascertain the business addresses of

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defendants M. Northerner, Brown and Paul, counsel shall so inform the court. Defendants’

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counsel shall file and serve the appropriate response within twenty-one days of the filed date of

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this order. Plaintiff’s motion to compel service, filed on September 14, 2011 (docket # 66),

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construed as request for judicial intervention or assistance for the purpose of locating the

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unserved defendants, is granted.

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IT IS SO ORDERED.
DATED: December 16, 2011

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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GGH:009

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beny2602.8es

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