Threats v. Beard

Filing 16

ORDER RE: DIRECTIONS TO PLAINTIFF; VACATING BRIEFING SCHEDULE and denying as moot 11 Dft Burton's Motion for Extension of Time to File. Signed 1/5/16 by Chief Magistrate Judge Joseph C. Spero. (klhS, COURT STAFF) (Filed on 1/5/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DERLYN RAY THREATS,
Plaintiff,

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ORDER RE: DIRECTIONS TO
PLAINTIFF;

v.
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P. BURTON, et al.,
Defendants.

United States District Court
Northern District of California

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Case No. 15-cv-02284-JCS (PR)

VACATING BRIEFING SCHEDULE
Dkt. No. 11

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Two of the three defendants named in this action, Reynolds and Williams, remain

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unserved, their summons having been returned as unexecuted. (Docket No. 9.) San

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Quentin authorities state that no one named Reynolds works for the prison, and that there

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are many persons named Williams who work there. (Id.)

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Plaintiff is directed to comply with the following. He must provide the Court with a

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current address for Reynolds and Williams’s first name so that the complaint can be served

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on them. In cases where 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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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 defendants, Reynolds and Williams. See Fed. R. Civ. P. 4(m). Because plaintiff

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has not provided sufficient information to allow the Marshal to locate and serve these

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defendants, plaintiff must remedy the situation or face dismissal of his claims against

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

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

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provided Marshal with sufficient information to effectuate service).

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Accordingly, plaintiff must either himself serve the unserved defendants with the
summons and complaint, or provide the Court with the information described above so that

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

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United States District Court
Northern District of California

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provide the Court with an accurate current location or other information for the

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defendants on or before February 22, 2016, plaintiff’s claims against the unserved

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defendants 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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The current briefing schedule, which directed that defendants file a dispositive

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motion by December 28, 2015, is VACATED. Defendant Burton’s motion for an

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extension of time to file such a motion (Docket No. 11) is DENIED as moot. When the

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other two defendants have been served, or when the claims against them have been

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dismissed, the Court will set a new briefing schedule.

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The Clerk shall terminate Docket No. 11.

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IT IS SO ORDERED.

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Dated: January 5, 2016
_________________________
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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DERLYN RAY THREATS,

Case No. 15-cv-02284-JCS

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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P. BURTON, 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.

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That on January 5, 2016, 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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Derlyn Ray Threats ID: AE-5305
California State Prison-San Quentin
San Quentin, CA 94974

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Dated: January 5, 2016

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Susan Y. Soong
Clerk, United States District Court

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

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United States District Court
Northern District of California

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