Zubiate v. Cate et al

Filing 120

ORDER DIRECTING PLAINTIFF TO PROVIDE INFORMATION NECESSARY TO LOCATE DEFENDANT J. PEREZ. Signed by Judge Yvonne Gonzalez Rogers on 6/19/2012. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 6/19/2012)

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1 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 JAVIER ZUBIATE, 5 6 No. C 10-04127 YGR (PR) Plaintiff, ORDER DIRECTING PLAINTIFF TO PROVIDE INFORMATION NECESSARY TO LOCATE DEFENDANT J. PEREZ vs. 7 MATTHEW CATE, et al., 8 Defendants. / 9 Plaintiff, a state prisoner, filed the present pro se prisoner complaint under 42 U.S.C. § 1983. United States District Court For the Northern District of California 10 11 The Court reviewed the complaint pursuant to 28 U.S.C. §1915A, found that the complaint stated a 12 claim for relief upon the named Defendants, and ordered service of process on them. (Docket No. 13 5.) Service has been ineffective on Defendant J. Perez. The summons for Defendant Perez was 14 15 returned unexecuted on March 1, 2012. (Docket No. 117.) Mary Kimbrell, the Litigation 16 Coordinator at California State Prison - Corcoran, has informed the Court that she originally 17 indicated that Defendant Perez "transferred to CSATF1 in 1997 and then resigned from there in the 18 same year and that [his] forwarding address [was] no longer valid" (id.); however, she admitted that 19 she was referring to the wrong "J. Perez," stating: We originally accepted service for Officer J[.] Perez, however once we received the complaint and the employee records of the J[.] Perez we have employed here, we discovered that this is not the same J[.] Perez listed in the complaint. The J[.] Perez we have on staff has never worked at PBSP or in IGI,2 nor was he an officer in 1997. 20 21 22 23 24 (Id.) While Plaintiff may rely on service by the United States Marshal, "a plaintiff may not remain 25 silent and do nothing to effectuate such service. At a minimum, a plaintiff should request service 26 upon the appropriate defendant and attempt to remedy any apparent defects of which [he] has 27 1 CSATF stands for California Substance Abuse Treatment Facility. 2 PBSP stands for Pelican Bay State Prison, and IGI stands for the Institution Gang Investigator. 28 1 knowledge." Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987). If the marshal is unable to 2 effectuate service and the plaintiff is so informed, the plaintiff must seek to remedy the situation or 3 face dismissal of the claims against that defendant under Federal Rule of Civil Procedure 4(m). See 4 Fed. R. Civ. P. 4(m) (providing that if service of the summons and complaint is not made upon a 5 defendant in 120 days after the filing of the complaint, the action must be dismissed without 6 prejudice as to that defendant absent a showing of "good cause"); see also Walker v. Sumner, 14 7 F.3d 1415, 1421-22 (9th Cir. 1994) (prisoner failed to show cause why prison official should not be 8 dismissed under Rule 4(m) because prisoner did not prove that he provided marshal with sufficient 9 information to serve official). United States District Court For the Northern District of California 10 No later than twenty-eight (28) days from the date of this Order, Plaintiff must provide the 11 Court with the current address of Defendant Perez. Plaintiff should review the federal discovery 12 rules, Rules 26-37 of the Federal Rules of Civil Procedure, for guidance about how to determine the 13 current address of this Defendant. 14 If Plaintiff fails to provide the Court with the current address of Defendant Perez 15 within the twenty-eight-day deadline, all claims against this Defendant will be dismissed 16 without prejudice under Rule 4(m). 17 IT IS SO ORDERED. 18 19 DATED: June 19, 2012 YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 20 21 22 23 24 25 26 27 28 G:\PRO-SE\YGR\CR.10\Zubiate4127.LocatePerez.frm 2

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