Youngs v. People of the State of California et al

Filing 35

ORDER RE: DIRECTIONS TO PLAINTIFF. Signed by Judge Richard Seeborg on 10/20/15. (Attachments: # 1 Certificate/Proof of Service)(cl, COURT STAFF) (Filed on 10/20/2015)

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1 2 *E-Filed 10/20/15* 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 SAN FRANCISCO DIVISION United States District Court For the Northern District of California 10 11 12 TYRONE YOUNGS, 15 16 17 18 ORDER RE: DIRECTIONS TO PLAINTIFF Plaintiff, 13 14 No. C 14-4278 RS (PR) v. THE PEOPLE OF THE STATE OF CALIFORNIA, et al., Defendants. / Defendant K.A. Thompson remains unserved, his summons having been returned as 19 unexecuted. San Quentin authorities state that no one by that name has ever worked for that 20 institution. (Docket No. 32.) Plaintiff now asserts that the defendant’s name is Thompson K. 21 (Docket Nos. 33 and 34.) This is not sufficient for the Marshal to effect service. 22 Plaintiff is directed to comply with the following. He must provide the defendant’s 23 last name so that the complaint can be served. In cases where the plaintiff proceeds in forma 24 pauperis, the “officers of the court shall issue and serve all process.” 28 U.S.C. § 1915(d). 25 The Court must appoint the Marshal to effect service, see Fed. R. Civ. P. 4(c)(2), and the 26 Marshal, upon order of the Court, must serve the summons and the complaint, see Walker v. 27 Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994). Although a plaintiff who is incarcerated and 28 No. C 14-4278 RS (PR) ORDER RE: DIRECTIONS TO PLAINTIFF 1 proceeding in forma pauperis may rely on service by the Marshal, such plaintiff “may not 2 remain silent and do nothing to effectuate such service”; rather, “[a]t a minimum, a plaintiff 3 should request service upon the appropriate defendant and attempt to remedy any apparent 4 defects of which [he] has knowledge.” Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 5 1987). 6 Here, plaintiff’s complaint has been pending for over 120 days, and, consequently, 7 absent a showing of “good cause,” is subject to dismissal without prejudice as to the 8 unserved defendant, Thompson. See Fed. R. Civ. P. 4(m). Because plaintiff has not 9 provided sufficient information to allow the Marshal to locate and serve the above-referenced United States District Court For the Northern District of California 10 defendant, plaintiff must remedy the situation or face dismissal of his claims against him. 11 See Walker, 14 F.3d at 1421–22 (holding prisoner failed to show cause why prison official 12 should not be dismissed under Rule 4(m) where prisoner failed to show he had provided 13 Marshal with sufficient information to effectuate service). 14 Accordingly, plaintiff must either himself serve the unserved defendant with the 15 summons and complaint, or provide the Court with the complete name and current location 16 of the defendant so that the Marshal is able to serve such defendant. If plaintiff fails to 17 effectuate service, or to provide the Court with an accurate current location or other 18 information for such defendant, on or before November 25, 2015, plaintiff’s claims against 19 the unserved defendant will be dismissed without prejudice pursuant to Rule 4(m) of the 20 Federal Rules of Civil Procedure. 21 22 IT IS SO ORDERED. DATED: October 20, 2015 RICHARD SEEBORG United States District Judge 23 24 25 26 27 28 2 No. C 14-4278 RS (PR) ORDER RE: DIRECTIONS TO PLAINTIFF

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