Borjas v. McGrath

Filing 50

ORDER Plaintiff SHALL provide the Court with the necessary information for UNSERVED defendants Duncan, Johnson, R. Roberts, Dr. D. Winslow, Warden J. McGrath, Dr. A. Everett, A. Atkins and Schwartz within 30 days from the date of this order.The CL ERK is instructed to send a copy of this order to the Litigation Coordinator at PBSP. The clerk is to ISSUE SUMMONS and on defendants Dr. Srikureja, F. Guy, Sr., and Rogers re 14 AMENDED COMPLAINT and along with copy of order 18 and 30 at Pelic an Bay State Prison as it APPEARS that these defendants WERE NOT INITIALLY SERVED. re 44 MOTION for Entry of Default filed by Jesus H. Borjas, 45 MOTION for Entry of Default filed by Jesus H. Borjas. Signed by Judge James Ware on 2/18/2009. (ecg, COURT STAFF) (Filed on 3/13/2009) Modified on 3/16/2009 (cv, COURT STAFF).. Modified on 3/17/2009 (cv, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA JESUS H. BORJAS, Plaintiff, vs. JOSEPH McGRATH, et al., Defendant(s). ) ) ) ) ) ) ) ) ) ) ) ) No. C 04-02252 JW (PR) ORDER REGARDING SERVICE ON DEFENDANTS; DENYING MOTIONS FOR ENTRY OF DEFAULT; INSTRUCTIONS TO CLERK

United United States District Court

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For the Northern District of California

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(Docket Nos. 44 & 45)

Plaintiff, a California prisoner, filed a pro se civil rights action under 42 U.S.C. § 1983 against various PBSP employees for violations of plaintiff's constitutional rights. Plaintiff's original complaint was dismissed with leave to amend. On August 17, 2007, the Court partially dismissed some of the claims in plaintiff's first amended complaint, and ordered service of the remaining cognizable claims upon the following defendants at Pelican Bay State Prison (PBSP): Correctional Officers D. Forkner, Tweed, M.L. Bray, P. Martinez, Ferguson, Speaker, Johnson, and R. Roberts; Medical Technical Assistant Mullens; Registered Nurses A. Rochuba, A. Atkins, L. Bree and S. Bliesner; Dr. A. Everett, Dr. Drikvrega, Health Care Manager Dr. D. Winslow, Dr. Duncan, Appeals Coordinator Nimrod, Associate Warden Schwartz, and Warden J. McGrath.
Order Regarding Service on Ds P:\PRO-SE\SJ.JW\CR.04\Borjas02252_re Ds.wpd

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A.

Summonses Returned Unexecuted On August 31, 2007, summonses were issues as to the above defendants.

However, several of the summonses were returned unexecuted on September 28, 2007 for the following reasons: 1. Defendants Unknown at PBSP

The summons for defendant Dr. Duncan was returned with the following comment: "Subject is unknown at the facility. The facility will not accept service." (See Docket No. 20.) Accordingly, this defendant has not been served. Federal Rule of Civil Procedure 4(m) contemplates that service of process normally will be accomplished within four months of the filing of the complaint. Although the Court can have the Marshal serve process on a defendant, it is plaintiff's responsibility to provide a name, including a first name or initial, and address for each defendant to be served. Plaintiff must provide the Court with this information in a pleading no later than thirty (30) days from the date of this order, in order for the Court to provide the United States Marshal with sufficient information for service to be effected under Fed. R. Civ. P. 4(c)(2). See Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994). Failure to do so may result in dismissal of the complaint against defendant Duncan under Rule 4(m). 2. More Information Needed

United States District Court

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For the Northern District of California

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The summons for defendant Johnson was returned with the following comment: "More information is needed on subject to be served. There are nine personnel at the facility with the last name of Johnson." (See Docket No. 25.) Additional information is required from plaintiff in order to proceed against this defendant. Plaintiff must provide the first name or initial of defendant Johnson to the Court in a pleading within thirty (30) days from the date of this order in order for the Court to provide the United States Marshal with sufficient information for service to be effected under Fed. R. Civ. P. 4(c)(2). See Walker, 14 F.3d at 1422. Failure to do so may result in dismissal of the complaint against this defendant.
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3.

No Longer at Facility

The summonses for defendants R. Roberts, Dr. D. Winslow, Warden J. McGrath, and Dr. A. Everett were returned with the comment on each either that "Subject is no longer at the facility. The facility will not accept service." (See Docket Nos. 19, 22, 23 & 24.) Accordingly, these defendants have not been served. The clerk of the Court shall send a copy of this order to the Litigation Coordinator at PBSP, who is requested to provide any forwarding address information that is available with respect to these defendants. However, it is ultimately plaintiff's responsibility to provide a name and address for each defendant to be served in order for the Court to direct the Marshal to serve process on a defendant. Plaintiff must provide the Court with this information in a pleading no later than thirty (30) days from the date of this order, in order for the Court to provide the United States Marshal with sufficient information for service to be effected under Fed. R. Civ. P. 4(c)(2). See Walker, 14 F.3d at 1422. Failure to do so may result in dismissal of the complaint against these defendants under Rule 4(m) of the Federal Rules of Civil Procedure. B. Summonses Not Yet Returned The summonses as to defendants A. Atkins and Schwartz have not yet been returned either executed or unexecuted. It appears that these defendants have not been served. Federal Rule of Civil Procedure 4(m) contemplates that service of process normally will be accomplished within four months of the filing of the complaint. Although the Court can have the Marshal serve process on a defendant, it is plaintiff's responsibility to provide a name and address for each defendant to be served. At a minimum, plaintiff must provide a last name and first initial of each defendant. Plaintiff has failed to do so for defendant Schwartz. Plaintiff must provide the Court with defendant's correct first name or initial in a pleading no later than thirty (30) days from the date of this order, in order for the Court to provide the United States Marshal with sufficient information for service to be effected
Order Regarding Service on Ds P:\PRO-SE\SJ.JW\CR.04\Borjas02252_re Ds.wpd

United States District Court

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For the Northern District of California

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under Fed. R. Civ. P. 4(c)(2). See Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994). Failure to do so may result in dismissal of the complaint against these defendants under Rule 4(m).

CONCLUSION For the foregoing reasons: 1. Plaintiff shall provide the Court with the necessary information

as discussed above for unserved defendants Duncan, Johnson, R. Roberts, Dr. D. Winslow, Warden J. McGrath, Dr. A. Everett, A. Atkins and Schwartz in a pleading no later than thirty (30) days from the date of this order. Plaintiff must provide the Court with this information in order for the Court to provide the United States Marshal with sufficient information for service to be effected under Fed. R. Civ. P. 4(c)(2). See Walker, 14 F.3d at 1422. Failure to do so may result in dismissal of the complaint against these defendants under Rule 4(m) of the Federal Rules of Civil Procedure. 2. Plaintiff's motion for default judgment against defendants A. Atkins

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and Scwhartz (Docket Nos. 44 & 45) are DENIED as premature; defendants have not been served with summons and the complaint, let alone had adequate time to discover the facts underlying plaintiff's claims. 3. The Clerk of the Court is instructed to send a copy of this order to the

Litigation Coordinator at PBSP, to comply with the Court's request to provide information regarding defendants who are no longer at the facility. 4. The Clerk shall issue summons and the United States Marshal shall

serve, without prepayment of fees, a copy of the July 10, 2006 Amended Complaint in this matter, all attachments thereto, a copy of the Court orders dated August 17, 2007 (Docket No. 18) and April 11, 2008 (Docket No. 30), and a copy of this order upon Dr. Srikureja, F. Guy, Sr., and Rogers at Pelican Bay State Prison as it appears that these defendants were not initially served.
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5.

The Clerk shall terminate Cal Terhune from this action since plaintiff

has not named him as a defendant in his amended complaint which supersedes the original complaint. No later than sixty (60) days from the date of this order, defendants shall file a motion for summary judgment or other dispositive motion with respect to the claims in the amended complaint found to be cognizable in the previous court orders. The parties shall comply with the briefing schedule set forth in the court order dated April 11, 2008. This order terminates Docket Nos. 44 and 45.
February 18, 2009

United States District Court

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For the Northern District of California

DATED:

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Order Regarding Service on Ds P:\PRO-SE\SJ.JW\CR.04\Borjas02252_re Ds.wpd

JAMES WARE United States District Judge

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

JESUS H. BORJAS, Plaintiff, v. JOSEPH McGRATH, et al., Defendants. /

Case Number: CV04-02252 JW CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. , I SERVED a true and correct copy(ies) of the That on attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Jesus H. Borjas E-89513 California Correctional Institution (CCI) P. O. Box 1902 Tehachapi, Ca 93581 Dated:

Richard W. Wieking, Clerk By: Elizabeth Garcia, Deputy Clerk