Shotwell v. Noll et al

Filing 28

ORDER DIRECTING PLAINTIFF TO PROVIDE COURT WITH LOCATION INFORMATION FOR UNSERVED DEFENDANTS. Signed by Judge Jeremy Fogel on 4/1/11. (dlm, COURT STAFF) (Filed on 4/22/2011)

1
2
3
4
5
6
7
8

NOT FOR CITATION
9

IN THE UNITED STATES DISTRICT COURT
10

FOR THE NORTHERN DISTRICT OF CALIFORNIA
11
12

PRINCE DEON SHOTWELL, JR.,

13

Plaintiff,

14

vs.

15

C. NOLLS, et al.,
16

Defendants.
17

No. C 10-01274 JF (PR)

)
)
)
)
)
)
)
)
)
)
)
)

ORDER DIRECTING PLAINTIFF TO
PROVIDE COURT WITH LOCATION
INFORMATION FOR UNSERVED
DEFENDANTS

18
19

Plaintiff, a prisoner currently incarcerated at the California State Prison in

20

Corcoran, filed the instant civil rights action in pro se pursuant to 42 U.S.C. § 1983

21

against prison officials at the Correctional Training Facility (“CTF”) in Soledad for

22

allegedly unconstitutional acts. The Court ordered service of Plaintiff’s amended

23

complaint upon the named defendants. (See Docket No. 17.) The summons for

24

Defendants J. Chudy and S. Musgrove were returned unexecuted on March 14, 2011,

25

with the following remark: “Subject is no longer at the facility. The facility will not

26

accept service.” (Docket Nos. 22 & 23.) Accordingly, Chudy and Musgrove have not

27

been served.

28

Although a plaintiff who is incarcerated and proceeding in forma pauperis may
Order Directing P to locate Ds
P:\PRO-SE\SJ.JF\CR.10\Shotwell01274_locate Ds.wpd

1

1

rely on service by the Marshal, such plaintiff “may not remain silent and do nothing to

2

effectuate such service”; rather, “[a]t a minimum, a plaintiff should request service upon

3

the appropriate defendant and attempt to remedy any apparent defects of which [he] has

4

knowledge.” Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987). Here, Plaintiff’s

5

complaint has been pending for over 120 days, and thus, absent a showing of “good

6

cause,” is subject to dismissal without prejudice. See Fed. R. Civ. P. 4(m). Plaintiff has

7

not provided sufficient information to allow the Marshal to locate and serve Defendants

8

Chudy and Musgrove, and consequently Plaintiff must remedy the situation or face

9

dismissal of his claims against these defendants without prejudice. See Walker v.

10

Sumner, 14 F.3d at 1421-22 (holding prisoner failed to show cause why prison official

11

should not be dismissed under Rule 4(m) where prisoner failed to show he had provided

12

Marshal with sufficient information to effectuate service).

13

Accordingly, Plaintiff must provide the Court with these Defendants’ accurate

14

current location such that the Marshal is able to effect service. If Plaintiff fails to provide

15

the Court with an accurate current location for them within thirty (30) days of the date

16

this order is filed, Plaintiff’s claims against Chudy and Musgrove will be dismissed

17

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

18
19

IT IS SO ORDERED.
DATED: 4/1/11
JEREMY FOGEL
United States District Judge

20
21
22
23
24
25
26
27
28
Order Directing P to locate Ds
P:\PRO-SE\SJ.JF\CR.10\Shotwell01274_locate Ds.wpd

2

UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

PRINCE D. SHOTWELL, JR.,

Case Number: CV10-01274 JF

Plaintiff,

CERTIFICATE OF SERVICE

v.
C. NOLLS, et al.,
Defendants.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on 4/22/11
, I SERVED a true and correct copy(ies) of the
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.

Prince Deon Shotwell H-05927
CA State Prison
P.O. BOX 5248
A2 B 245L
Corcoran, CA 93212
Dated: 4/22/11
Richard W. Wieking, Clerk