Cleveland v. Stokes

Filing 9

ORDER DIRECTING PLAINTIFF TO EFFECTUATE SERVICE UPON OR PROVIDE COURT WITH LOCATION INFORMATION FOR DEFENDANT SUNDARAN. Signed by Judge Jeremy Fogel on 10/24/08. (dlm, COURT STAFF) (Filed on 10/27/2008)

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NOT FOR CITATION IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

IVAN VERNORD CLEVELAND, Plaintiff, vs. DR. SUNDARAN, Defendant.

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No. C 06-02861 JF (PR) ORDER DIRECTING PLAINTIFF TO EFFECTUATE SERVICE UPON OR PROVIDE COURT WITH LOCATION INFORMATION FOR DEFENDANT SUNDARAN

Plaintiff, a California prisoner incarcerated at the California Training Facility in Soledead, ("CTF-Soledad") and proceeding pro se, filed the instant civil rights action pursuant to 42 U.S.C. § 1983 against prison officials. The Court found cognizable Plaintiff's Eighth Amendment claim against Defendant Dr. Sundaran based on his deliberate indifference to Plaintiff's serious medical needs, i.e., his back problems, and dismissed the other claims. On August 21, 2008, the Court directed the clerk to prepare the summons for service of the complaint upon Defendant Sundaran, and the United States Marshal to effectuate such service. The Clerk prepared the summons for service of Dr. Sundaran at CTF-Soledad, where Plaintiff indicated he was located. On September 24, 2008, the Marshal returned the summons unexecuted, noting that "No record of Dr. Sundaran. Facility will not accept service." (See
Order Directing P to Effectuate Service P:\PRO-SE\SJ.JF\CR.06\Cleveland861_effect svc.wpd

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Docket No. 8.) Accordingly, Defendant has not been served. In cases wherein the Plaintiff proceeds in forma pauperis, the "officers of the court shall issue and serve all process." 28 U.S.C. 1915(d). The Court must appoint the Marshal to effect service, see Fed. R. Civ. P. 4(c)(2), and the Marshal, upon order of the Court, must serve the summons and the complaint, see Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994). Although a Plaintiff who is incarcerated and proceeding in forma pauperis may rely on service by the Marshal, such Plaintiff "may not remain silent and do nothing to effectuate such service"; rather, "[a]t a minimum, a plaintiff should request service upon the appropriate defendant and attempt to remedy any apparent defects of which [he] has knowledge." Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987). Here, Plaintiff's complaint has been pending for well over 120 days, and thus, absent a showing of "good cause," 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 Sundaran, and consequently Plaintiff must remedy the situation or face dismissal of his complaint without prejudice. See Walker v. Sumner, 14 F.3d at 1421-22 (holding prisoner failed to show cause why prison official should not be dismissed under Rule 4(m) where prisoner failed to show he had provided Marshal with sufficient information to effectuate service). Accordingly, the claims against Sundaran will be dismissed without prejudice under Rule 4(m) unless Plaintiff either himself effects service upon Sundaran, or provides the Court with an accurate current location such that the Marshal is able to effect service upon him.

CONCLUSION Plaintiff must either himself effect service on Defendant Sundaran, or provide the Court with an accurate current location such that the Marshal is able to effect service. If Plaintiff fails to effectuate service on Defendant Sundaran, or provide the Court with an accurate current location and a first name or initial, for said Defendant,
Order Directing P to Effectuate Service P:\PRO-SE\SJ.JF\CR.06\Cleveland861_effect svc.wpd

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within thirty (30) days of the date this order is filed, Plaintiff's claims against said Defendant will be dismissed without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.

IT IS SO ORDERED. DATED:
10/24/08

JEREMY FOGEL United States District Judge

Order of Partial Dismissal and of Service P:\PRO-SE\SJ.JF\CR.06\Cleveland861_effect svc.wpd

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