Pacheco v. Gamboa et al

Filing 30

ORDER RE: INSTRUCTIONS TO PLAINTIFF; ORDER VACATING BRIEFING SCHEDULEDeadlines terminated: 12/19/15 dispositive motion deadline. Signed by Chief Magistrate Judge Joseph C. Spero on 10/29/15. (klhS, COURT STAFF) (Filed on 10/29/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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STEVE P. PACHECO,

United States District Court
Northern District of California

Plaintiff,
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ORDER RE: INSTRUCTIONS TO
PLAINTIFF;

v.
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Case No. 15-cv-00987-JCS (PR)

LAWRENCE GAMBOA, et al.,
Defendants.

ORDER VACATING BRIEFING
SCHEDULE

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This is a federal civil rights action filed by a pro se state prisoner. One defendant,

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Mark Allsyer, remains unserved, the summons having been returned as unexecuted.

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Salinas Valley State Prison states that no person by that name is employed there. (Docket

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No. 27.)

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Plaintiff must assist in serving Allsyer. In cases wherein the plaintiff proceeds in

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forma pauperis, the “officers of the court shall issue and serve all process.” 28 U.S.C. §

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1915(d). The Court must appoint the Marshal to effect service, see Fed. R. Civ. P. 4(c)(2),

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and the Marshal, upon order of the Court, must serve the summons and the complaint, see

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Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994). Although a plaintiff who is

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incarcerated and proceeding in forma pauperis may rely on service by the Marshal, such

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plaintiff “may not remain silent and do nothing to effectuate such service”; rather, “[a]t a

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minimum, a plaintiff should request service upon the appropriate defendant and attempt to

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remedy any apparent defects of which [he] has knowledge.” Rochon v. Dawson, 828 F.2d

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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, Mark Allsyer. See Fed. R. Civ. P. 4(m). Because plaintiff has not

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

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referenced defendant, plaintiff must remedy the situation or face dismissal of his claims

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against him. See Walker, 14 F.3d at 1421-22 (holding prisoner failed to show cause why

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prison official should not be dismissed under Rule 4(m) where prisoner failed to show he

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United States District Court
Northern District of California

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had provided 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

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

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provide the Court with an accurate current location for Allsyer, on or before December 15,

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2015, plaintiff’s claims against Allsyer will be dismissed without prejudice pursuant to

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

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The current briefing schedule (Docket No. 18), which set a dispositive motion

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deadline of December 19, 2015, is VACATED. Once Allsyer has been served or the

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claims against him have been dismissed, the Court will set a new briefing schedule.

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IT IS SO ORDERED.
Dated: October 29, 2015
_________________________
JOSEPH C. SPERO
Chief Magistrate Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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STEVE P. PACHECO,

Case No. 15-cv-00987-JCS

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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LAWRENCE GAMBOA, et al.,
Defendants.

United States District Court
Northern District of California

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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 October 29, 2015, 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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Steve P. Pacheco ID: AG 8695
Salinas Valley State Prison
P.O. Box 1050
Soledad, CA 93960

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Dated: October 29, 2015

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
Karen Hom, Deputy Clerk to the
Honorable JOSEPH C. SPERO

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