Price v. Henry et al

Filing 36

ORDER, Henry terminated.. Signed by Judge ARMSTRONG on 8/17/11. (lrc, COURT STAFF) (Filed on 8/17/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MELVIN D. PRICE,

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Plaintiff,

DR. HENRY, et al.,
Defendants.

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Plaintiff, a state prisoner, filed the present pro se prisoner action under 42 U.S.C. § 1983.
The Court issued an Order of Service. Defendant Dr. Henry has not been served in this action.

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For the Northern District of California

United States District Court

ORDER DISMISSING WITHOUT
PREJUDICE CLAIMS AGAINST
DEFENDANT DR. HENRY

v.

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No. C 09-06050 SBA (PR)

As Plaintiff is proceeding in forma pauperis (IFP), he is responsible for providing the Court

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with current addresses for all Defendants so that service can be accomplished. See Walker v.

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Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994); Sellers v. United States, 902 F.2d 598, 603 (7th Cir.

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1990).

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Pursuant to Federal Rule of Civil Procedure 4(m), if a complaint is not served within 120

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days from the filing of the complaint, it may be dismissed without prejudice for failure of service.

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When advised of a problem accomplishing service, a pro se litigant proceeding IFP must "attempt to

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remedy any apparent defects of which [he] has knowledge." Rochon v. Dawson, 828 F.2d 1107,

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1110 (5th Cir. 1987). If the marshal is unable to effectuate service through no fault of his own, e.g.,

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because the plaintiff failed to provide sufficient information, the plaintiff must seek to remedy the

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situation or face dismissal. See Walker, 14 F.3d at 1421-22 (prisoner failed to show cause why

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complaint against prison official should not be dismissed under Rule 4(m) because prisoner did not

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prove that he provided marshal with sufficient information to serve official or that he requested that

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official be served).

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In an Order dated March 2, 2011, Plaintiff was directed to provide the Court with the

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required information necessary to locate Defendant Henry. He was also informed that the failure to

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do so shall result in the dismissal of all claims against Defendant Henry. In a motion dated March

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11, 2011, Plaintiff requested a ninety-day extension of time to provide the Court with the required

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information necessary to locate this Defendant. In an Order dated April 22, 2011, Plaintiff's request

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for an extension of time was granted, and the Court directed Plaintiff to provide the current address

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for Defendant Henry within ninety days from the date of that Order. Ninety days have passed, and

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Plaintiff has failed to provide the Court with the aforementioned required information.

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This action has been pending for over 120 days, and service upon Defendant Henry has not

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been effectuated. Plaintiff has failed to show cause why the claims against Defendant Henry should

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not be dismissed without prejudice pursuant to Rule 4(m). Accordingly, all claims against

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Defendant Henry are DISMISSED without prejudice under Rule 4(m).

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DATED: 8/17/11
SAUNDRA BROWN ARMSTRONG
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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IT IS SO ORDERED.

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G:\PRO-SE\SBA\CR.09\Price6050.Dismiss Henry-4m.wpd

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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MELVIN D. PRICE,
Case Number: CV09-06050 SBA

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Plaintiff,
CERTIFICATE OF SERVICE
v.
DR. HENRY et al,
Defendant.

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For the Northern District of California

United States District Court

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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 August 17, 2011, 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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Melvin D. Price F-37541
Richard J. Donovan State Prison
P.O. Box 799003
San Diego, CA 92179
Dated: August 17, 2011

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Richard W. Wieking, Clerk
By: LISA R CLARK, Deputy Clerk

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G:\PRO-SE\SBA\CR.09\Price6050.Dismiss Henry-4m.wpd

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