Reynolds v. California Department of Corrections and Rehabilitation et al

Filing 19

ORDER FOR PLAINTIFF TO PROVIDE ADDRESS FOR SERVICE OF PROCESS ON DEFENDANT (Illston, Susan) (Filed on 8/23/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RICHARD LANCE REYNOLDS,
Plaintiff,

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v.

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J. MERENDA,

ORDER FOR PLAINTIFF TO PROVIDE
ADDRESS FOR SERVICE OF PROCESS
ON DEFENDANT

Defendant.

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United States District Court
Northern District of California

Case No. 17-cv-04202-SI

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In this pro se prisoner’s civil rights action, service of process was ordered on sergeant J.

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Merenda, who allegedly had used excessive force on plaintiff on April 5, 2016 at the Correctional

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Training Facility in Soledad. All other defendants and claims were dismissed. See Docket No.

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14.

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On August 21, 2018, the Marshal returned the summons unexecuted and with a note
stating that, “per institution, Merenda is retired.” Docket No. 18.

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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.’”

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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

Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994),

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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 or her. Here, the Marshal has

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been unable to serve process on J. Merenda at the Correctional Training Facility in Soledad, the

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only address for J. Merenda mentioned in the complaint.
Accordingly, no later than October 19, 2018, plaintiff must provide a current address at

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which J. Merenda may be served with process. There are many ways plaintiff might attempt to

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learn this information. For example, he could write to the personnel offices of the CDCR and the

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Correctional Training Facility to learn how to obtain the current address of a retired employee, or

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United States District Court
Northern District of California

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he could issue subpoenas to the CDCR and the prison for records containing Merenda’s current

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address. It is plaintiff’s obligation, not the court’s, to gather this information. In the alternative to

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providing an address for J. Merenda, plaintiff must show cause by that same deadline why he has

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not provided the information needed to locate J. Merenda and serve process on him. If plaintiff
fails to provide sufficient information to enable service of process to be accomplished on J.
Merenda, the action will be dismissed without prejudice unless plaintiff shows cause for his failure
to provide the information.
Due to the need to resolve the unserved defendant problem, the court now VACATES the
briefing schedule for defendant to file a motion for summary judgment or other dispositive
motion. Once the service of process problem is resolved, the court will set a new briefing
schedule.
IT IS SO ORDERED.
Dated: August 23, 2018
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SUSAN ILLSTON
United States District Judge

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