Schoppe-Rico v. CDCR Director of Prisons et al

Filing 61

ORDER by Judge Yvonne Gonzalez Rogers denying 44 Motion/Request for Service by US Marshal; granting 53 Motion for Extension of Time to File to 12/16/13. (Attachments: # 1 Certificate/Proof of Service) (fs, COURT STAFF) (Filed on 11/15/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JOHN M. SCHOPPE-RICO,

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Plaintiff,
v.
ROBERT A. HOREL, et al.,

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Defendants.

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No. C 11-01089 YGR (PR)

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ORDER DENYING PLAINTIFF'S
REQUEST FOR SERVICE BY U.S.
MARSHAL; AND GRANTING
PLAINTIFF AN EXTENSION OF TIME
TO PROVIDE REQUIRED
INFORMATION NECESSARY TO
LOCATE DEFENDANT B. JAIN

Plaintiff, a state prisoner, filed the present pro se prisoner action under 42 U.S.C. § 1983.

United States District Court
For the Northern District of California

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Thereafter, the Court reviewed Plaintiff's Third Amended Complaint ("TAC") and issued its Order

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of Service.

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Service has been ineffective on Defendant B. Jain. In an Order dated September 24, 2013,

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Plaintiff was directed to provide the Court with the required information necessary to locate this

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Defendant. He was also informed that the failure to do so shall result in the dismissal of all claims

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against this Defendant.

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On October 18, 2013, Plaintiff filed a document entitled, "Motion for Marshals to

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Serve/Effectuate Service on B. Jain," in which Plaintiff requests the Court to direct the U.S. Marshal

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to serve Defendant Jain at two addresses Plaintiff has provided. (Docket No. 44.) The Court

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DENIES Plaintiff's request to have the Court direct the U.S. Marshal to serve Defendant Jain

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because it is the Court's practice to encourage Defendants to waive service pursuant to Rule 4 of the

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Federal Rules of Civil Procedure, which requires them to cooperate in saving unnecessary costs of

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service of the summons and complaint.

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On October 22, 2013, Plaintiff filed a document entitled, "Response In Regards to Inability

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to Serve Defendant Jain . . . ." (Docket No. 48.) Again, Plaintiff has provided the same two

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addresses for Defendant Jain.

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Also on October 22, 2013, the Clerk of the Court re-served Defendant Jain -- with a Notice

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of Lawsuit and Request for Waiver of Service of Summons, two copies of the Waiver of Service of

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Summons, and a copy of the TAC -- at both addresses provided by Plaintiff: a P.O. Box in Hayward

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and the California Medical Board in Sacramento. To date, Defendant Jain has not returned a signed

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waiver of service of the summons, and the other served Defendants' attorney has not appeared on his

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behalf. However, the deadline to return the signed waiver is thirty days from the date the Notice and

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Request were sent, which is on November 21, 2013. That deadline has not yet passed.

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On October 23, 2013, the Clerk received a letter from the Litigation Office at Pelican Bay

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State Prison ("PBSP"), which included the last known address of Defendant Jain. Because that

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address was labeled a "residential home" it was filed under seal. (Docket No. 49.) On the same

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date, the Clerk re-served Defendant Jain at that address by mailing him the same documents

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mentioned above. (Docket No. 50.) On November 7, 2013, the aforementioned mail sent to

United States District Court
For the Northern District of California

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Defendant Jain was returned as undeliverable with a notation, "Not Deliverable as Addressed,

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Unable to Forward." (Docket No. 55.) Therefore, the Clerk has been unable to re-serve Defendant

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Jain at the last known address provided by the litigation office at PBSP.

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Before the Court is Plaintiff's request for an extension of time to provide the Court with the
required information necessary to locate Defendant Jain. (Docket No. 53.)

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Having read and considered Plaintiff's request, and good cause appearing,

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IT IS HEREBY ORDERED that Plaintiff's request for an extension of time is GRANTED

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(Docket No. 53). The time in which Plaintiff may provide the Court with more current information

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necessary to locate this Defendant will be extended up to and including December 16, 2013.

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If the Clerk is unable to successfully effectuate service on Defendant Jain at the two

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addresses provided previously by Plaintiff -- the P.O. Box in Hayward and the California Medical

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Board in Sacramento -- and if Plaintiff fails to provide the Court with more current information

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necessary to locate this Defendant by the December 16, 2013 deadline, then all claims against this

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Defendant will be dismissed.

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This Order terminates Docket Nos. 44 and 53.

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IT IS SO ORDERED.

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DATED: November 15, 2013
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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G:\PRO-SE\YGR\CR.11\Schoppe-Rico1089.GrantingEOT-CR-4(m)response.wpd

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