Oliver v. Evans et al

Filing 52

ORDER: NOTICE REGARDING INABILITY TO SERVE DEFENDANT MEISNER. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 5/7/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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NOTICE REGARDING INABILITY TO
SERVE DEFENDANT MEISNER

Plaintiff,

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No. C 11-04052 YGR (PR)

JAMES LUCIOUS OLIVER,

v.
WARDEN EVANS, et al.,
Defendants.

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/

United States District Court
For the Northern District of California

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Service has been ineffective on Defendant Salinas Valley State Prison (SVSP) Correctional
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Officer Meisner. The Court has been informed that the Litigation Coordinator at California State
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Prison - Corcoran (Corcoran) states that there is "no one there with this name."1 (Docket No. 12.)

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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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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 regarding that defendant under Federal Rule of Civil Procedure 4(m).
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See 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).
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The summons was originally sent to SVSP. However, after the U.S. Marshall was unable to
serve Defendant Meisner at SVSP, he was directed to send the summons to Corcoran.

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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 a current address for Defendant Meisner. 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 Meisner

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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: May 7, 2013
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

United States District Court
For the Northern District of California

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G:\PRO-SE\YGR\CR.11\Oliver4052.grantEOToppn.wpd

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