Hall v. Curry et al

Filing 85

ORDER by Judge Ronald M. Whyte Granting 84 Plaintiff's Motion to Compel Service Upon Defendant R. Quintero. (jg, COURT STAFF) (Filed on 7/8/2009)

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*E-FILED - 7/8/09*

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

RICHARD GARY HALL, JR., Plaintiff, vs. JAMES TILTON, et al., Defendants.

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No. C 07-3233 RMW (PR) ORDER GRANTING PLAINTIFF'S MOTION TO COMPEL SERVICE UPON DEFENDANT R. QUINTERO

(Docket No. 84)

On March 26, 2008, plaintiff, a California prisoner proceeding pro se, filed the instant second amended civil rights complaint pursuant to 42 U.S.C. § 1983. On October 16, 2008, the court ordered service of the complaint on certain defendants, including Correctional Counselor R. Quintero, at Salinas Valley State Prison ­ North Facility in Soledad, California. After the United States Marshal attempted service on Quintero, the summons was returned unexecuted with the notation that "Correctional Counselor R. Quintero is unknown at the facility" and "[t]he facility will not accept service." (Docket No. 56.) On June 24, 2009, plaintiff filed a motion asking the court to compel service on Quintero. In the motion, plaintiff has clarified that defendant Quintero was employed as either a correctional officer or correctional counselor at the Level III Prison of the Correctional Training Facility -- North, Salinas Valley State Prison some time during plaintiff's imprisonment there between 2000 and January 25, 2008. Plaintiff requests that
Order Granting Plaintiff's Motion to Compel Service upon Defendant R. Quintero 1 P:\PRO-SE\SJ.Rmw\CR.07\Hall233srvmisc2.wpd

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the court order the United States Marshal "to inspect the employee roster retroactively maintained at the facility" in order to prove that Quintero was, and perhaps still is, employed there. Plaintiff cites no authority, and the court is aware of none, for being able to order such an inspection. However, because plaintiff has provided additional information about Quintero's position and dates of employment, the court will re-issue summons as to Quintero. Plaintiff is warned that if the marshal is again unable to effectuate service through no fault of his own, Quintero will be dismissed from this action without prejudice. See Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 1994), overruled on other grounds by Sandin v. Connor, 515 U.S. 472 (1995) (prisoner failed to show cause why prison official should not be dismissed under Rule 4(m) because prisoner did not prove that he provided marshal with sufficient information to serve official or that he requested that official be served). IT IS HEREBY ORDERED THAT plaintiff's motion to compel service on defendant R. Quintero (docket no. 84) is GRANTED. The clerk of the court shall issue summons and the United States Marshal shall serve, without prepayment of fees, a copy of the second amended complaint, all attachments thereto, and a copy of this order upon Correctional Officer or Correctional Counselor R. Quintero, at Salinas Valley State Prison ­ North Facility in Soledad, California. IT IS SO ORDERED.

7/7/09 DATED: _________________

RONALD M. WHYTE United States District Judge

Order Granting Plaintiff's Motion to Compel Service upon Defendant R. Quintero 2 P:\PRO-SE\SJ.Rmw\CR.07\Hall233srvmisc2.wpd