Shields v. Foston et al

Filing 23

ORDER signed by Magistrate Judge Edmund F. Brennan on 6/26/12 TERMINATING 20 , 21 , and 22 Motion. Plaintiff is GRANTED a final extension of time to serve defendants. Failure to accomplish service within 60 days from the date of this order will may result in a recommendation that this action be dismissed for failure to follow court orders, for failure to effect service of process within the time prescribed by Rule 4(m), and/or for lack of prosecution under Rule 41(b) of the Federal Rules of Civil Procedure. (Meuleman, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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REMON SHIELDS,
Plaintiff,

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vs.

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No. 2:11-cv-0015 JAM EFB P

D. FOSTON, et al.,

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Defendants.

ORDER
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Plaintiff, a state prisoner without counsel, brought this civil rights action alleging that

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defendants violated his rights under the First Amendment and the Religious Land Use and

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Institutionalized Persons Act of 2000. See Dckt. Nos. 1, 13. On August 12, 2011, the court

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denied plaintiff’s application to proceed in forma pauperis because he had “three strikes” within

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the meaning of 28 U.S.C. § 1915(g). Dckt. Nos. 8, 12. On September 12, 2011, plaintiff paid

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the filing fee. Thereafter, the court screened the complaint pursuant to 28 U.S.C. § 1915A, and

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found that it stated potentially cognizable claims for relief against defendants Foston, Miller,

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Walker, Mayfield, and Taylor. Dckt. Dckt. No. 13.

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On November 30, 2011, the court directed plaintiff to complete service of process within

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120 days (see Federal Rule of Civil Procedure (“Rule”) 4(m)). Id. The court also directed the

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parties to file status reports no later than March 19, 2012, and cautioned that failure to obey the
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federal or local rules or orders of the court could result in sanctions, including a recommendation

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that the case be dismissed. Id. On January 4, 2012, the court granted plaintiff a 30-day

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extension of time to complete service on the defendants. Dckt. No. 18.

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The court file reveals that plaintiff has not filed a status report as required by the

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November 30, 2011 order, and that plaintiff has not yet effected service of process on

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defendants.

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However, plaintiff requests that the court serve the defendants for him, or either provide him

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with defendants’ current or last known addresses, or order the warden to provide him with

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defendants’ addresses. Plaintiff makes these requests on the grounds that he is indigent, cannot

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afford outside assistance with effectuating service, and his been unable to find defendants’

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addresses on his own. Plaintiff also requests another 60 days to complete service and seeks

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permission to serve defendants by publication. See Dckt. Nos. 20, 21, 22.

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Plaintiff’s requests for assistance in serving defendants are denied. Plaintiff is not

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proceeding in forma pauperis, and it is his responsibility to arrange for service of process on

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defendants.

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Additionally, the court will not allow plaintiff to serve defendants by publication. The

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Federal Rules of Civil Procedure provide that a person from whom a waiver of service has not

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been obtained may be served by “following state law for serving a summons . . . in the state

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where the district court is located . . . .” Fed. R. Civ. P 4(e)(1). The California Code of Civil

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Procedure provides that “[a] summons may be served by publication if upon affidavit it appears

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to the satisfaction of the court in which the action is pending that the party to be served cannot

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with reasonable diligence be served in another manner . . . .” Cal. Civ. P. Code § 415.50(a). The

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court is not satisfied that defendants cannot, with “reasonable diligence,” be served by means

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other than publication. See Olvera v. Olvera, 232 Cal. App. 3d 32, 41 (1991) (“Personal service

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remains the method of choice under the statutes and the constitution. When substituted or

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constructive service is attempted, strict compliance with the letter and spirit of the statutes is
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required.” (internal citations omitted)); Watts v. Crawford, 10 Cal. 4th 743, 749 n.5 (1995)

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(“Before allowing a plaintiff to resort to service by publication, the courts necessarily require

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him to show exhaustive attempts to locate the defendant, for it is generally recognized that

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service by publication rarely results in actual notice.” (quotations and citations omitted)).

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Accordingly, IT IS HEREBY ORDERED that:

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1. The Clerk of the Court is directed to terminate docket numbers 20, 21, and 22.

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2. Plaintiff is granted a final extension of time to serve defendants. Failure to

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accomplish service within 60 days from the date of this order will may result in a

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recommendation that this action be dismissed for failure to follow court orders, for failure to

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effect service of process within the time prescribed by Rule 4(m), and/or for lack of prosecution

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under Rule 41(b) of the Federal Rules of Civil Procedure.

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DATED: June 26, 2012.

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