Zapata v. Ducart et al

Filing 15

ORDER by Judge Edward M. Chen 9 10 Re Unserved Defendant and Denying Request for Counsel. (Attachments: # 1 Certificate/Proof of Service). (emcsec, COURT STAFF) (Filed on 9/26/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOSE ZAPATA,
Plaintiff,

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CLARK DUCART, et al.,

Docket Nos. 9, 10

Defendants.

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For the Northern District of California

United States District Court

ORDER RE UNSERVED DEFENDANT
AND DENYING REQUEST FOR
COUNSEL

v.

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Case No. 17-cv-02557-EMC

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A.

Unserved Defendant Problem

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The Court ordered service of process on five Defendants in this pro se prisoner‟s civil

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rights action. Four of the five Defendants have been served with process and appeared in this

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action. Defendant Jonathan Kreindler, formerly a rabbi at Pelican Bay State Prison, has not been

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served with process or appeared in this action.

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After attempting service of process, the U.S. Marshal filed a “process receipt and return”

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form, indicating that Rabbi Kreindler could not be served at the only address provided, i.e.,

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Pelican Bay State Prison. (Docket No. 9.) Specifically, the Marshal reported: “Deft. no longer

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employed @ CDCR - no new information. Unable to further endeavor.” (Id.)

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“If a defendant is not served within 90 days after the complaint is filed, the court--on

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motion or on its own after notice to the plaintiff--must dismiss the action without prejudice against

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that defendant or order that service be made within a specified time. But if the plaintiff shows

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good cause for the failure, the court must extend the time for service for an appropriate period.”

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Fed. R. Civ. P. 4(m). Where a prisoner is proceeding in forma pauperis and must rely on the

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Marshal for service of process, “[s]o long as the prisoner has furnished the information necessary

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to identify the defendant, the marshal's failure to effect service „is automatically good cause‟ for

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not effectuating timely service.‟” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994),

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overruled on other grounds by Sandin v. Conner, 515 U.S. 472 (1995); see e.g., id. (district court

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did not err in dismissing defendant where plaintiff “did not prove that he provided the marshal

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with sufficient information to serve” this particular defendant or that he requested service).

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Although it is the Marshal‟s duty to serve process when a prisoner-plaintiff is proceeding

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as a pauper, the Marshal‟s ability to do so depends on a plaintiff providing sufficient information

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about a defendant for the Marshal to find the defendant to serve him. Plaintiff has not provided

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sufficient information for the Marshal to serve process on Rabbi Kreindler.

which Rabbi Kreindler may be served with process. It is Plaintiff‟s obligation, not the Court‟s, to

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gather this information. In the alternative to providing the information, Plaintiff must show cause

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For the Northern District of California

Accordingly, no later than November 10, 2017, Plaintiff must provide a current address at

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United States District Court

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by that same deadline why he has not provided the information needed to locate the unserved

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Defendant and serve process on him. If Plaintiff fails to provide sufficient information to enable

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service of process to be accomplished, Rabbi Kreindler will be dismissed without prejudice unless

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Plaintiff shows cause for his failure to provide the information.

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B.

Request For Appointment Of Counsel

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Plaintiff has requested that counsel be appointed to represent him in this action. A district

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court has the discretion under 28 U.S.C. §1915(e)(1) to designate counsel to represent an indigent

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civil litigant in exceptional circumstances. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th

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Cir. 1986). This requires an evaluation of both the likelihood of success on the merits and the

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ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues

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involved. See id. Neither of these factors is dispositive and both must be viewed together before

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deciding on a request for counsel under § 1915(e)(1). Exceptional circumstances are not present

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in this action: Plaintiff was able to articulate clearly his religious-diet claim and there do not

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appear to be complex legal issues involved. The request for appointment of counsel is DENIED.

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(Docket No. 10.)

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C.

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Scheduling
In light of the need to resolve the service of process problem for Rabbi Kreindler, the
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Court now VACATES the briefing schedule for dispositive motions. Although several

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Defendants have appeared in this action, it is preferable to wait until Rabbi Kreindler has appeared

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or been dismissed to set a briefing schedule so that all Defendants can be on the same briefing

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schedule.

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IT IS SO ORDERED.

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Dated: September 26, 2017
______________________________________
EDWARD M. CHEN
United States District Judge

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For the Northern District of California

United States District Court

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