Rodriguez v. Evans

Filing 19

ORDER re: defendant's address. Signed by Judge ARMSTRONG on 12/8/08. (lrc, COURT STAFF) (Filed on 12/11/2008) Modified on 12/12/2008 (kk, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

JOSEPH ARTHUR RODRIGUEZ, Plaintiff,

No. C 05-05068 SBA (PR) ORDER DIRECTING PLAINTIFF TO PROVIDE REQUIRED INFORMATION NECESSARY TO LOCATE DEFENDANT NAVAREZ

M. S. EVANS, Warden, et al., Defendants. /

Plaintiff filed the instant pro se civil rights complaint under 42 U.S.C. § 1983. The Court issued an Order of Service, directing the United States Marshal to serve a summons and complaint on Defendants. Service has been ineffective on Defendant Navarez. The SVSP Litigation Office informed the United States Marshal that "no employee with this last name has ever worked at SVSP." As Plaintiff is proceeding in forma pauperis (IFP), he is responsible for providing the Court with the full names and current addresses for all Defendants so that service can be accomplished. See Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994); Sellers v. United States, 902 F.2d 598, 603 (7th Cir. 1990). Pursuant to Fed. R. Civ. P. 4(m), if a complaint is not served within 120 days from the filing of the complaint, it may be dismissed without prejudice for failure of service. When advised of a problem accomplishing service, a pro se litigant proceeding IFP must "attempt to remedy any apparent defects of which [he] has knowledge." Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987). If the marshal is unable to effectuate service through no fault of his own, e.g., because Plaintiff failed to provide sufficient information or because the defendant is not where Plaintiff claims, and Plaintiff is informed, Plaintiff must seek to remedy the situation or face dismissal. See Walker, 14 F.3d at 1421-22 (prisoner failed to show cause why prison official should not be dismissed under Rule 4(m) because prisoner did not prove that he provided marshal with sufficient

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information to serve official or that he requested that official be served); see also Del Raine v. Williford, 32 F.3d 1024, 1029-31 (7th Cir. 1994) (prisoner failed to show good cause for failing to timely effect service on defendant because plaintiff did not provide marshal with copy of amended complaint until after more than 120 days after it was filed). Service has been attempted by the United States Marshals Service and has failed with respect to Defendant Navarez. IT IS HEREBY ORDERED THAT within thirty (30) days of the date of this Order, Plaintiff must provide the Court with the required information necessary to locate Defendant Navarez, including the correct spelling of Defendant Navarez's name. Failure to do so shall result in the dismissal of all claims against Defendant Navarez. If Plaintiff provides the Court with aforementioned required information, service shall again be attempted. If service fails a second time, all claims against Defendant Navarez shall be dismissed. IT IS SO ORDERED. DATED: 12/8/08 SAUNDRA BROWN ARMSTRONG United States District Judge

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA RODRIGUEZ, Plaintiff, v. EVANS et al, Defendant. /

Case Number: CV05-05068 SBA CERTIFICATE OF SERVICE

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 December 11, 2008, 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.

Joseph Arthur Rodriguez K66400 California Correctional Institution 4A-7B-105 P.O. Box 1902 Tehachapi, CA 93581 Dated: December 11, 2008 Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk

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