Cook v. Cate et al

Filing 37

ORDER : NOTICE REGARDING INABILITY TO SERVE DEFENDANT VASQUEZ. Signed by Judge Yvonne Gonzalez Rogers on 3/18/13. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 3/18/2013)

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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 D. VACQUEZ

Plaintiff,

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No. C 11-06581 YGR (PR)

SCOTT TROY COOK,

vs.
MATTHEW CATE, 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 D. Vacquez. The Court has been informed that
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the litigation coordinator at Pelican Bay State Prison ("PBSP") was "unable to identify a D. Vacquez
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as ever working at [PBSP]." (Feb. 19, 2013 Letter from L. Padon at 1.)
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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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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 Vacquez. 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 Vacquez

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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: March 18, 2013
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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United States District Court
For the Northern District of California

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G:\PRO-SE\YGR\CR.11\Cook6581.locateDefVacquez.wpd

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