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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JAMES ALEXANDER RIALS, Plaintiff, 8 9 10 v. ORDER DIRECTING PLAINTIFF TO EFFECT SERVICE ON H. COSTILLO; VACATING BRIEFING SCHEDULE A. DAYS, et al., Defendants. 11 United States District Court Northern District of California Case No. 17-cv-00467-HSG 12 13 Plaintiff, an inmate at Salinas Valley State Prison (“SVSP”) in Soledad, California, filed 14 this pro se civil rights action against SVSP correctional officials pursuant to 42 U.S.C. § 1983. On 15 April 28, 2017, the Court found that Plaintiff stated a cognizable Eighth Amendment claim against 16 Sergeant A. Days, Sergeant E. Garcia, Officer E. Torres, Officer B. Chin, Officer A. Machuca, 17 Officer A. Cortina, and Officer H. Costillo, and issued an order of service. Dkt. No. 7. On June 18 22, 2017, counsel Caitlin Ross filed a waiver of reply on behalf of defendants Days, Garcia, 19 Torres, Chin, Machuca, and Cortina. Dkt. No. 11. Defendant H. Costillo has not yet made an 20 appearance in this action and does not appear to have been served. In response to the Court’s 21 order requesting information regarding defendant H. Costillo, Ms. Ross reported that she did not 22 represent H. Costillo and that the SVSP litigation coordinator had reported that there was no SVSP 23 officer by the name of H. Costillo, but that there was an SVSP officer named “H. Castillo.” Dkt. 24 No. 16 at 2. 25 A plaintiff who is incarcerated and proceeding in forma pauperis may rely on service by 26 the Marshal, but such plaintiff “may not remain silent and do nothing to effectuate such service”; 27 rather, “[a]t a minimum, a plaintiff should request service upon the appropriate defendant and 28 attempt to remedy any apparent defects of which [he] has knowledge.” Rochon v. Dawson, 828 1 F.2d 1107, 1110 (5th Cir. 1987). Absent a showing of “good cause,” a complaint pending for over 2 90 days is subject to dismissal without prejudice. See Fed. R. Civ. P. 4(m). 3 Plaintiff has not provided sufficient information to allow the Marshal to locate and serve 4 defendant H. Costillo. Consequently, Plaintiff must remedy the situation or face dismissal of H. 5 Costillo without prejudice. See Walker v. Sumner, 14 F.3d 1415, 1421‒22 (9th Cir. 1994) 6 (holding prisoner failed to show cause why prison official should not be dismissed under Rule 7 4(m) where prisoner failed to show he had provided Marshal with sufficient information to 8 effectuate service). Accordingly, within thirty (30) days of this order, Plaintiff must effect service on 10 defendant H. Costillo, or submit to the Court sufficient information to identify and locate 11 United States District Court Northern District of California 9 defendant H. Costillo such that the Marshal is able to effect service. If Plaintiff intended to serve 12 “H. Castillo” instead of the originally named “H. Costillo,” he should so inform the Court and file 13 a request for the United States Marshal to re-issue summons for the correct defendant. Failure to 14 comply with the deadline set forth in this order will result in dismissal of any unserved 15 defendant without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. 16 The briefing schedule set forth in the Court’s April 28, 2017 order is VACATED. The 17 Court will issue a new briefing schedule for dispositive motions when all service issues have been 18 resolved. 19 20 21 22 IT IS SO ORDERED. Dated: 9/13/2017 ______________________________________ HAYWOOD S. GILLIAM, JR. United States District Judge 23 24 25 26 27 28 2

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