McCowan

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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*E-Filed 9/15/14*

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN FRANCISCO DIVISION

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ORDER RE: DIRECTIONS TO
PLAINTIFF;

Plaintiff,

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No. C 13-0407 RS (PR)

VINCENT PRICE MCCOWAN,

v.
ORDER VACATING BRIEFING
SCHEDULE

G.D. LEWIS, et al.,

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Defendants.
/

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This is a federal civil rights action. The sole remaining defendant (A. Avalos)

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remains unserved, the summons having been returned as unexecuted. (Docket Nos. 35 and

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36.)

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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 Marshal

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to effect service, see Fed. R. Civ. P. 4(c)(2), and the Marshal, upon order of the Court, must

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serve the summons and the complaint, see Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir.

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1994). Although a plaintiff who is incarcerated and proceeding in forma pauperis may rely

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on service by the Marshal, such plaintiff “may not remain silent and do nothing to effectuate

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such service”; rather, “[a]t a minimum, a plaintiff should request service upon the appropriate

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No. C 13-0407 RS (PR)
ORDER RE: DIRECTIONS TO PLAINTIFF

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defendant and attempt to remedy any apparent defects of which [he] has knowledge.”

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Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987).

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Here, plaintiff’s complaint has been pending for over 120 days, and, consequently,

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absent a showing of “good cause,” is subject to dismissal without prejudice as to the

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unserved defendant, A. Avalos. See Fed. R. Civ. P. 4(m). Because plaintiff has not provided

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sufficient information to allow the Marshal to locate and serve the above-referenced

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defendant, plaintiff must remedy the situation or face dismissal of his claims against him.

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See Walker, 14 F.3d at 1421–22 (holding prisoner failed to show cause why prison official

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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

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Marshal with sufficient information to effectuate service).
Accordingly, plaintiff must either himself serve the unserved defendant with the

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summons and complaint, or provide the Court with an accurate current location such that the

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Marshal is able to serve such defendant. If plaintiff fails to effectuate service, or provide the

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Court with an accurate current location for Avalos, on or before November 1, 2014,

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plaintiff’s claims against Avalos, along with the complaint, will be dismissed without

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prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.

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The briefing schedule set forth in the second order of service (Docket No. 29) is

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VACATED, and the Clerk shall terminate the appropriate deadlines. Defendants are relieved

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of their obligation to file a dispositive motion, or notice regarding such motion. If Avalos is

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served successfully, the Court will set a new briefing schedule.

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IT IS SO ORDERED.

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DATED: September 15, 2014
RICHARD SEEBORG
United States District Judge

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No. C 13-0407 RS (PR)
ORDER RE: DIRECTIONS TO PLAINTIFF