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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 EARL WARNER, Case No. 16-cv-04100-YGR (PR) Plaintiff, 8 v. 9 10 C. TILESTON, et al., SECOND NOTICE REGARDING INABILITY TO SERVE DEFENDANT A. WILLIAMS Defendants. United States District Court Northern District of California 11 12 This Order addresses issues regarding service in the above-captioned action. 13 In an Order dated March 28, 2017, the Court issued a “Notice Regarding Inability to Serve 14 Defendant A. Williams.” Dkt. 30. The Court stated that it had been informed that Defendant 15 Williams “does not work for CDCR/SVSP and [has] no forwarding address.” Id. (citing Dkt. 27 at 16 1). Thereafter, the Court acquired Defendant Williams’s last known address, and the Clerk of the 17 Court served him at that address under seal. Dkt. 46. However, the prison litigation coordinator 18 indicated that Defendant Williams may have moved out of state, and the last known address may 19 be outdated. On September 14, 2017, the summons mailed to Defendant Williams’s last known 20 address was returned as undeliverable because he was “not at [that] address.” Dkt. 47. 21 As Plaintiff is proceeding in forma pauperis, he is responsible for providing the Court with 22 current addresses for all Defendants so that service can be accomplished. See Walker v. Sumner, 23 14 F.3d 1415, 1422 (9th Cir. 1994); Sellers v. United States, 902 F.2d 598, 603 (7th Cir. 1990). 24 While Plaintiff may rely on service by the United States Marshal, or in this case, the procedure for 25 requesting a defendant to waive the service requirement, “a plaintiff may not remain silent and do 26 nothing to effectuate such service.” Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987). 27 When advised of a problem accomplishing service, a pro se litigation must “attempt to remedy 28 any apparent defects of which [he] has knowledge.” Id. Pursuant to Federal Rule of Civil 1 Procedure 4(m), if a complaint is not served within 120 days from the filing of the complaint, it 2 may be dismissed without prejudice for failure of service. Fed. R. Civ. P. 4(m) (providing that if 3 service of the summons and complaint is not made upon a defendant in 90 days after the filing of 4 the complaint, the action must be dismissed without prejudice as to that defendant absent a 5 showing of “good cause”); see also Walker, 14 F.3d at 1421-22 (prisoner failed to show cause 6 why prison official should not dismissed under Rule 4(m) because prisoner did not prove that he 7 provided marshal with sufficient information to serve official). 8 9 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 11 United States District Court Northern District of California 10 determine the current address of this Defendant. 12 If Plaintiff fails to provide the Court with the current address of Defendant Williams 13 within the twenty-eight-day deadline, all claims against this Defendant will be dismissed 14 without prejudice under Rule 4(m). 15 IT IS SO ORDERED. 16 17 Dated: November 17, 2017 ______________________________________ YVONNE GONZALEZ ROGERS United States District Court Judge 18 19 20 21 22 23 24 25 26 27 28 2

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