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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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JAVIER ZUBIATE,
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No. C 10-04127 YGR (PR)
Plaintiff,
ORDER DIRECTING PLAINTIFF TO
PROVIDE INFORMATION NECESSARY
TO LOCATE DEFENDANT J. PEREZ
vs.
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MATTHEW CATE, et al.,
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Defendants.
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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
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The Court reviewed the complaint pursuant to 28 U.S.C. §1915A, found that the complaint stated a
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claim for relief upon the named Defendants, and ordered service of process on them. (Docket No.
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5.)
Service has been ineffective on Defendant J. Perez. The summons for Defendant Perez was
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returned unexecuted on March 1, 2012. (Docket No. 117.) Mary Kimbrell, the Litigation
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Coordinator at California State Prison - Corcoran, has informed the Court that she originally
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indicated that Defendant Perez "transferred to CSATF1 in 1997 and then resigned from there in the
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same year and that [his] forwarding address [was] no longer valid" (id.); however, she admitted that
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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.
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(Id.)
While Plaintiff may rely on service by the United States Marshal, "a plaintiff may not remain
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silent and do nothing to effectuate such service. At a minimum, a plaintiff should request service
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upon the appropriate defendant and attempt to remedy any apparent defects of which [he] has
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CSATF stands for California Substance Abuse Treatment Facility.
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PBSP stands for Pelican Bay State Prison, and IGI stands for the Institution Gang Investigator.
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knowledge." Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987). If the marshal is unable to
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effectuate service and the plaintiff is so informed, the plaintiff must seek to remedy the situation or
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face dismissal of the claims against that defendant under Federal Rule of Civil Procedure 4(m). See
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Fed. R. Civ. P. 4(m) (providing that if service of the summons and complaint is not made upon a
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defendant in 120 days after the filing of the complaint, the action must be dismissed without
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prejudice as to that defendant absent a showing of "good cause"); see also Walker v. Sumner, 14
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F.3d 1415, 1421-22 (9th Cir. 1994) (prisoner failed to show cause why prison official should not be
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dismissed under Rule 4(m) because prisoner did not prove that he provided marshal with sufficient
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information to serve official).
United States District Court
For the Northern District of California
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No later than twenty-eight (28) days from the date of this Order, Plaintiff must provide the
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Court with the current address of Defendant Perez. Plaintiff should review the federal discovery
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rules, Rules 26-37 of the Federal Rules of Civil Procedure, for guidance about how to determine the
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current address of this Defendant.
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If Plaintiff fails to provide the Court with the current address of Defendant Perez
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within the twenty-eight-day deadline, all claims against this Defendant will be dismissed
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without prejudice under Rule 4(m).
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IT IS SO ORDERED.
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DATED:
June 19, 2012
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE
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G:\PRO-SE\YGR\CR.10\Zubiate4127.LocatePerez.frm
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