Filing 38

ORDER RE: DIRECTIONS TO PLAINTIFF; ORDER VACATING BRIEFING SCHEDULE. Signed by Judge Richard Seeborg on 9/15/14. (cl, COURT STAFF) (Filed on 9/15/2014) (Additional attachment(s) added on 9/15/2014: # 1 Certificate/Proof of Service) (cl, COURT STAFF).

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1 2 *E-Filed 9/15/14* 3 4 5 6 7 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 United States District Court For the Northern District of California 8 SAN FRANCISCO DIVISION 11 12 13 ORDER RE: DIRECTIONS TO PLAINTIFF; Plaintiff, 14 15 No. C 13-0407 RS (PR) VINCENT PRICE MCCOWAN, v. ORDER VACATING BRIEFING SCHEDULE G.D. LEWIS, et al., 16 Defendants. / 17 18 This is a federal civil rights action. The sole remaining defendant (A. Avalos) 19 remains unserved, the summons having been returned as unexecuted. (Docket Nos. 35 and 20 36.) 21 In cases wherein the plaintiff proceeds in forma pauperis, the “officers of the court 22 shall issue and serve all process.” 28 U.S.C. § 1915(d). The Court must appoint the Marshal 23 to effect service, see Fed. R. Civ. P. 4(c)(2), and the Marshal, upon order of the Court, must 24 serve the summons and the complaint, see Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 25 1994). Although a plaintiff who is incarcerated and proceeding in forma pauperis may rely 26 on service by the Marshal, such plaintiff “may not remain silent and do nothing to effectuate 27 such service”; rather, “[a]t a minimum, a plaintiff should request service upon the appropriate 28 No. C 13-0407 RS (PR) ORDER RE: DIRECTIONS TO PLAINTIFF 1 defendant and attempt to remedy any apparent defects of which [he] has knowledge.” 2 Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987). 3 Here, plaintiff’s complaint has been pending for over 120 days, and, consequently, 4 absent a showing of “good cause,” is subject to dismissal without prejudice as to the 5 unserved defendant, A. Avalos. See Fed. R. Civ. P. 4(m). Because plaintiff has not provided 6 sufficient information to allow the Marshal to locate and serve the above-referenced 7 defendant, plaintiff must remedy the situation or face dismissal of his claims against him. 8 See Walker, 14 F.3d at 1421–22 (holding prisoner failed to show cause why prison official 9 should not be dismissed under Rule 4(m) where prisoner failed to show he had provided United States District Court For the Northern District of California 10 11 Marshal with sufficient information to effectuate service). Accordingly, plaintiff must either himself serve the unserved defendant with the 12 summons and complaint, or provide the Court with an accurate current location such that the 13 Marshal is able to serve such defendant. If plaintiff fails to effectuate service, or provide the 14 Court with an accurate current location for Avalos, on or before November 1, 2014, 15 plaintiff’s claims against Avalos, along with the complaint, will be dismissed without 16 prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. 17 The briefing schedule set forth in the second order of service (Docket No. 29) is 18 VACATED, and the Clerk shall terminate the appropriate deadlines. Defendants are relieved 19 of their obligation to file a dispositive motion, or notice regarding such motion. If Avalos is 20 served successfully, the Court will set a new briefing schedule. 21 IT IS SO ORDERED. 22 DATED: September 15, 2014 RICHARD SEEBORG United States District Judge 23 24 25 26 27 28 2 No. C 13-0407 RS (PR) ORDER RE: DIRECTIONS TO PLAINTIFF

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