Burton v. Lewis et al
Filing
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ORDER DIRECTING PLAINTIFF TO SERVE OR TO PROVIDE LOCATION OF UNSERVED DEFENDANTS; DENYING DEFAULT AND TEMPORARY RESTRAINING ORDER. Signed by Judge Jeffrey S. White on 11/13/12. (jjoS, COURT STAFF) (Filed on 11/13/2012)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JERRY A. BURTON,
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Plaintiff,
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v.
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G. D. LEWIS, et al.,
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Defendants.
__________________________________ )
No. C 12-3158 JSW (PR)
ORDER DIRECTING PLAINTIFF
TO SERVE OR TO PROVIDE
LOCATION OF UNSERVED
DEFENDANTS; DENYING
DEFAULT AND TEMPORARY
RESTRAINING ORDER
(Docket Nos. 19, 21)
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Plaintiff, a California prisoner proceeding pro se, has filed this civil rights
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complaint under 42 U.S.C. § 1983 against Defendant G.D. Lewis, the Warden of Pelican
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Bay Sate Prison (“PBSP”) where Plaintiff is currently housed, and Defendants Chief
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Deputy Warden Susan Hubbard and Classification Service Representative Brian Lee,
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two officials at California State Prison, Corcoran (“Corcoran”) where Plaintiff was
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formerly housed. These were the names, titles and locations provided by Plaintiff in the
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complaint. The complaint was reviewed pursuant to 28 U.S.C. 1915A, and the United
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States Marshal was ordered to serve it upon these Defendants at the locations Plaintiff
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provided. Lewis was served and has appeared. The Marshal filed “Process Receipt and
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Return” forms indicating that an attempt to serve Hubbard and Lee at Corcoran was
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unsuccessful because they are not located there. Hubbard has retired, and Lee is not
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located there.
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In cases wherein the plaintiff proceeds in forma pauperis, the “officers of the court
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shall issue and serve all process.” 28 U.S.C. § 1915(d). The court must appoint the
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Marshal to effect service, see Fed. R. Civ. P. 4(c)(2), and the Marshal, upon order of the
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court, must serve the summons and the complaint, see Walker v. Sumner, 14 F.3d 1415,
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1422 (9th Cir. 1994). Although a plaintiff who is incarcerated and proceeding in forma
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pauperis may rely on service by the Marshal, such plaintiff “may not remain silent and do
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nothing to effectuate such service”; rather, “[a]t a minimum, a plaintiff should request
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service upon the appropriate defendant and attempt to remedy any apparent defects of
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which [he] has knowledge.” Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987).
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Plaintiff’s complaint has been pending for 120 days, and it is therefore subject to
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dismissal without prejudice absent a showing of “good cause” if the parties have not been
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served. See Fed. R. Civ. P. 4(m); see also Walker, 14 F.3d at 1421-22 (holding prisoner
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failed to show cause why prison official should not be dismissed under Rule 4(m) where
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prisoner failed to show he had provided Marshal with sufficient information to effectuate
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service). Accordingly, plaintiff must either himself effect service on Defendants Hubbard
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and Lee, or submit to the Court sufficient information to identify and locate them such
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that the Marshal is able to effect service upon them. If Plaintiff fails to do so, or to show
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cause why he cannot, on or December 8, 2012, his claims against the Defendants
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Hubbard and Lee will be dismissed without prejudice pursuant to Rule 4(m) of the Federal
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Rules of Civil Procedure.
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In light of the foregoing service problems, Plaintiff’s motion for default judgment
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against Defendants Lee and Hubbard is DENIED (docket number 21). Plaintiff’s motion
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for a temporary restraining order (“TRO”) is DENIED because he has not shown a
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sufficient likelihood of success on the merits of his claims (docket number 19).
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IT IS SO ORDERED.
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DATED: November 13, 2012
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JEFFREY S. WHITE
United States District Judge
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UNITED STATES DISTRICT COURT
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FOR THE
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NORTHERN DISTRICT OF CALIFORNIA
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JERRY A BURTON,
Case Number: CV12-03158 JSW
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Plaintiff,
CERTIFICATE OF SERVICE
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v.
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G D LEWIS et al,
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Defendant.
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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on November 13, 2012, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office
delivery receptacle located in the Clerk's office.
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Jerry A. Burton
E85733
P.O. Box 7500
Crescent City, CA 95532
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Dated: November 13, 2012
Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk
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