Warner v. Tileston et al

Filing 58

ORDER : SECOND NOTICE REGARDING INABILITY TO SERVE DEFENDANT A. WILLIAMS. Signed by Judge Yvonne Gonzalez Rogers on 11/17/17. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 11/17/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EARL WARNER,

Case No. 16-cv-04100-YGR (PR)

Plaintiff,
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v.
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C. TILESTON, et al.,

SECOND NOTICE REGARDING
INABILITY TO SERVE DEFENDANT
A. WILLIAMS

Defendants.

United States District Court
Northern District of California

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This Order addresses issues regarding service in the above-captioned action.

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In an Order dated March 28, 2017, the Court issued a “Notice Regarding Inability to Serve

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Defendant A. Williams.” Dkt. 30. The Court stated that it had been informed that Defendant

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Williams “does not work for CDCR/SVSP and [has] no forwarding address.” Id. (citing Dkt. 27 at

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1). Thereafter, the Court acquired Defendant Williams’s last known address, and the Clerk of the

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Court served him at that address under seal. Dkt. 46. However, the prison litigation coordinator

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indicated that Defendant Williams may have moved out of state, and the last known address may

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be outdated. On September 14, 2017, the summons mailed to Defendant Williams’s last known

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address was returned as undeliverable because he was “not at [that] address.” Dkt. 47.

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As Plaintiff is proceeding in forma pauperis, he is responsible for providing the Court with

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current addresses for all Defendants so that service can be accomplished. See Walker v. Sumner,

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14 F.3d 1415, 1422 (9th Cir. 1994); Sellers v. United States, 902 F.2d 598, 603 (7th Cir. 1990).

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While Plaintiff may rely on service by the United States Marshal, or in this case, the procedure for

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requesting a defendant to waive the service requirement, “a plaintiff may not remain silent and do

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nothing to effectuate such service.” Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987).

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When advised of a problem accomplishing service, a pro se litigation must “attempt to remedy

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any apparent defects of which [he] has knowledge.” Id. Pursuant to Federal Rule of Civil

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Procedure 4(m), if a complaint is not served within 120 days from the filing of the complaint, it

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may be dismissed without prejudice for failure of service. Fed. R. Civ. P. 4(m) (providing that if

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service of the summons and complaint is not made upon a defendant in 90 days after the filing of

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the complaint, the action must be dismissed without prejudice as to that defendant absent a

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showing of “good cause”); see also Walker, 14 F.3d at 1421-22 (prisoner failed to show cause

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why prison official should not dismissed under Rule 4(m) because prisoner did not prove that he

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provided marshal with sufficient 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 Court with a current address for Defendant Williams. Plaintiff should review the federal
discovery rules, Rules 26-37 of the Federal Rules of Civil Procedure, for guidance about how to

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United States District Court
Northern District of California

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determine the current address of this Defendant.

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If Plaintiff fails to provide the Court with the current address of Defendant Williams

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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: November 17, 2017

______________________________________
YVONNE GONZALEZ ROGERS
United States District Court Judge

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