Rials v. Days et al

Filing 17

ORDER DIRECTING PLAINTIFF TO EFFECT SERVICE ON H. COSTILLO; VACATING BRIEFING SCHEDULE. Signed by Judge Haywood S. Gilliam, Jr. on 9/13/2017. (Attachments: # 1 Certificate/Proof of Service)(ndrS, COURT STAFF) (Filed on 9/13/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JAMES ALEXANDER RIALS,
Plaintiff,

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v.

ORDER DIRECTING PLAINTIFF TO
EFFECT SERVICE ON H. COSTILLO;
VACATING BRIEFING SCHEDULE

A. DAYS, et al.,
Defendants.

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United States District Court
Northern District of California

Case No. 17-cv-00467-HSG

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Plaintiff, an inmate at Salinas Valley State Prison (“SVSP”) in Soledad, California, filed

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this pro se civil rights action against SVSP correctional officials pursuant to 42 U.S.C. § 1983. On

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April 28, 2017, the Court found that Plaintiff stated a cognizable Eighth Amendment claim against

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Sergeant A. Days, Sergeant E. Garcia, Officer E. Torres, Officer B. Chin, Officer A. Machuca,

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Officer A. Cortina, and Officer H. Costillo, and issued an order of service. Dkt. No. 7. On June

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22, 2017, counsel Caitlin Ross filed a waiver of reply on behalf of defendants Days, Garcia,

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Torres, Chin, Machuca, and Cortina. Dkt. No. 11. Defendant H. Costillo has not yet made an

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appearance in this action and does not appear to have been served. In response to the Court’s

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order requesting information regarding defendant H. Costillo, Ms. Ross reported that she did not

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represent H. Costillo and that the SVSP litigation coordinator had reported that there was no SVSP

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officer by the name of H. Costillo, but that there was an SVSP officer named “H. Castillo.” Dkt.

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No. 16 at 2.

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A plaintiff who is incarcerated and proceeding in forma pauperis may rely on service by

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the Marshal, but such plaintiff “may not remain silent and do nothing to effectuate such service”;

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rather, “[a]t a minimum, a plaintiff should request service upon the appropriate defendant and

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attempt to remedy any apparent defects of which [he] has knowledge.” Rochon v. Dawson, 828

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F.2d 1107, 1110 (5th Cir. 1987). Absent a showing of “good cause,” a complaint pending for over

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90 days is subject to dismissal without prejudice. See Fed. R. Civ. P. 4(m).

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Plaintiff has not provided sufficient information to allow the Marshal to locate and serve

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defendant H. Costillo. Consequently, Plaintiff must remedy the situation or face dismissal of H.

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Costillo without prejudice. See Walker v. Sumner, 14 F.3d 1415, 1421‒22 (9th Cir. 1994)

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(holding prisoner failed to show cause why prison official should not be dismissed under Rule

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4(m) where prisoner failed to show he had provided Marshal with sufficient information to

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effectuate service).
Accordingly, within thirty (30) days of this order, Plaintiff must effect service on

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defendant H. Costillo, or submit to the Court sufficient information to identify and locate

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United States District Court
Northern District of California

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defendant H. Costillo such that the Marshal is able to effect service. If Plaintiff intended to serve

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“H. Castillo” instead of the originally named “H. Costillo,” he should so inform the Court and file

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a request for the United States Marshal to re-issue summons for the correct defendant. Failure to

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comply with the deadline set forth in this order will result in dismissal of any unserved

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defendant without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.

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The briefing schedule set forth in the Court’s April 28, 2017 order is VACATED. The

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Court will issue a new briefing schedule for dispositive motions when all service issues have been

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resolved.

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IT IS SO ORDERED.
Dated: 9/13/2017
______________________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge

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