Schoppe-Rico v. Horel et al

Filing 49

ORDER by Judge Yvonne Gonzalez Rogers granting 37 Motion for Extension of Time to Provide Address to 4/9/12; denying 38 Motion and Response re US Marshal's Inability to serve defendant McKellep. (Attachments: # 1 Certificate/Proof of Service) (fs, COURT STAFF) (Filed on 3/20/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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Plaintiff,

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No. C 11-02809 YGR (PR)

JOHN M. SCHOPPE-RICO,

vs.
GOVERNOR SCHWARZENEGGER, et al.,
Defendants.

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ORDER FINDING PLAINTIFF'S
ATTEMPTS TO LOCATE DEFENDANT
E. C. MCKELLEP'S CURRENT
ADDRESS AS INSUFFICIENT AND
GRANTING PLAINTIFF AN
EXTENSION OF TIME TO PROVIDE
THAT ADDRESS

United States District Court
For the Northern District of California

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Plaintiff, a state prisoner, filed the present pro se prisoner complaint under 42 U.S.C. § 1983
against multiple defendants. Service has been ineffective as to Defendant E. C. McKellep.
In an Order dated January 26, 2012, the Court notified Plaintiff that the United States
Marshal had been unable to effectuate service upon Defendant McKellep. The Court ordered
Plaintiff to provide the Court with a current address for Defendant McKellep. The Court also
informed Plaintiff that the failure to provide Defendant McKellep's current address could result in
the dismissal of all claims against this Defendant.
Plaintiff has been unable to locate a current address for Defendant McKellep. Before the
Court are two motions filed by Plaintiff, entitled: (1) "Motion [and] Response Regarding U.S.
Marshall[']s Inability To Serve Defendant E.C. McKellep" (docket no. 38); and (2) "Motion For
Extension of Time To Assist In Service of Defendant E. C. McKellep" (docket no. 37). Plaintiff
claims that Defendant McKellep's address "can be obtained from the California Department of
Corrections, Hiren Correction Officer Records Agency at 1515 S. Street, P.O. Box 942883,
Sacramento, CA 942883-0001." (Docket no. 38.) He asks that the Court either (1) consider the
attempts he has made thus far to locate Defendant McKellep's address as sufficient to meet his
responsibilities under Federal Rule of Civil Procedure 4(m), or (2) grant him a further extension of
time in which to locate the address himself.

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Pursuant to Rule 4(m), if a complaint is not served within 120 days from the filing of the

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complaint, it may be dismissed without prejudice for failure of service. When advised of a problem

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accomplishing service, a pro se litigant proceeding in forma pauperis must "attempt to remedy any

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apparent defects of which [he] has knowledge." Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir.

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1987). As mentioned above, to date, Plaintiff has not provided the Court with Defendant McKellep's

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current address. Instead, Plaintiff claims that he knows where to obtain Defendant McKellep's

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current address; however, he has not shown that he has been successful in obtaining that Defendant's

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address using that lead. The Court finds that Plaintiff's submissions are insufficient to meet his

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responsibilities under Rule 4(m); therefore, his "Motion [and] Response Regarding U.S. Marshall[']s

United States District Court
For the Northern District of California

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Inability To Serve Defendant E. C. McKellep" (docket no. 38) is DENIED.
Plaintiff, has, however, shown good cause for a further extension of time in which to provide

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Defendant McKellep's current address. Accordingly, Plaintiff's Motion For Extension of Time To

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Assist In Service of Defendant E. C. McKellep" (docket no. 37) is GRANTED. The time in which

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Plaintiff may provide the Court with the required information necessary to locate Defendant

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McKellep will be extended up to and including April 9, 2012. Failure to do so by the new deadline

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shall result in the dismissal of all claims against this Defendant.

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This Order terminates Docket nos. 37 and 38.

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IT IS SO ORDERED.

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DATED: March 20, 2012
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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G:\PRO-SE\YGR\CR.11\Schoppe-Rico2809.granteot&deny4m.wpd

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