Ethridge v. Natividad Medical Center et al

Filing 22

ORDER DIRECTING PLAINTIFF TO PROVIDE COURT WITH MORE INFORMATION FOR DEFENDANT PENNINGTON. Signed by Judge Haywood S. Gilliam, Jr. on 2/9/2018. (Attachments: # 1 Certificate/Proof of Service)(ndrS, COURT STAFF) (Filed on 2/9/2018)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CARL DANIEL ETHRIDGE, Plaintiff, 8 9 10 United States District Court Northern District of California 11 Case No. 16-cv-05428-HSG (PR) v. NATIVIDAD MEDICAL CENTER, et al., ORDER DIRECTING PLAINTIFF TO PROVIDE COURT WITH MORE INFORMATION FOR DEFENDANT PENNINGTON Defendants. 12 13 Plaintiff, an inmate at Salinas Valley State Prison, filed the instant pro se civil rights action 14 pursuant to 42 U.S.C. § 1983, alleging deliberate indifference to serious medical needs as against 15 Natividad Medical Center (“Natividad”) and three of its medical doctors, Paul Simcoe, Jennifer 16 Swiney, and Mary Pennington. On November 14, 2016, the Court directed the Clerk to prepare 17 the summonses for service of the complaint upon the three doctors and the United States Marshal 18 to effectuate such service. Defendants Simcoe and Swiney have been served. On February 8, 19 2018, the summons for defendant Pennington was returned unexecuted with the notation “subject 20 no longer works at Natividad Hospital.” Dkt. No. 21. 21 Although a plaintiff who is incarcerated and proceeding in forma pauperis may rely on 22 service by the Marshal, such plaintiff “may not remain silent and do nothing to effectuate such 23 service;” rather, “[a]t a minimum, a plaintiff should request service upon the appropriate defendant 24 and attempt to remedy any apparent defects of which [he] has knowledge.” Rochon v. Dawson, 25 828 F.2d 1107, 1110 (5th Cir. 1987). Absent a showing of “good cause,” a complaint pending for 26 27 28 over 90 days is subject to dismissal without prejudice. See Fed. R. Civ. P. 4(m). Plaintiff has not provided sufficient information to allow the Marshal to locate and serve defendant Pennington. Consequently, plaintiff must remedy the situation or face dismissal of 1 defendant Pennington from this action without prejudice. See Walker v. Sumner, 14 F.3d 1415, 2 1421-22 (9th Cir. 1994) overruled on other grounds by Sandin v. Conner, 515 U.S. 472, 483-84 3 (1995) (holding prisoner failed to show cause why prison official should not be dismissed under 4 Rule 4(m) where prisoner failed to show he had provided Marshal with sufficient information to 5 effectuate service). Because the complaint has been pending for over 90 days, the Court will sua 6 7 8 9 10 sponte grant plaintiff an extension of time to effect service on defendant Pennington. Accordingly, within sixty (60) days of this order, plaintiff must effect service on defendant Pennington, or submit to the Court sufficient information to identify and locate defendant Pennington such that the Marshal is able to effect service. If plaintiff fails to provide the court with the information requested within sixty (60) days of the date this order is filed, plaintiff’s claim against defendant Pennington will be dismissed without prejudice pursuant to Rule 11 United States District Court Northern District of California 4(m) of the Federal Rules of Civil Procedure. 12 The briefing schedule will remain stayed. The Court will issue a new briefing schedule for 13 dispositive motions when all service issues have been resolved. 14 IT IS SO ORDERED. 15 16 Dated: 2/9/2018 17 18 HAYWOOD S. GILLIAM, JR. United States District Judge 19 20 21 22 23 24 25 26 27 28 2

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