Zubiate v. Cate et al

Filing 31

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

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NOT FOR CITATION
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JAVIER ZUBIATE,
Plaintiff,

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No. C 10-04127 JF (PR)

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vs.

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MATTHEW CATE, et al.,
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Defendants.
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ORDER DIRECTING PLAINTIFF TO
PROVIDE COURT WITH LOCATION
INFORMATION FOR UNSERVED
DEFENDANTS; DIRECTING CLERK
TO REISSUE SUMMONSES

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Plaintiff, a prisoner currently incarcerated at the Pelican Bay State Prison, filed the

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instant civil rights action in pro se pursuant to 42 U.S.C. § 1983 against prison officials

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

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upon the named defendants. (See Docket No. 5.) The following defendants have not

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been served.

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DISCUSSION

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A.

Insufficient Location Information

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The summons for Defendants J. Beeson and J. M. Escobedo were returned

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unexecuted on February 25, 2011, with the following remark: “Subject is no longer at the
Order Directing P to locate Ds; Reissuing Summonses
P:\PRO-SE\SJ.JF\CR.10\Zubiate04127_unserved Ds.wpd

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facility. The facility will not accept service.” (Docket Nos. 27 & 29.) Accordingly,

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Beeson and Escobedo have not been served.

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Although a plaintiff who is incarcerated and proceeding in forma pauperis may

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

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

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

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

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

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

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

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Beeson and Escobedo , and consequently Plaintiff must remedy the situation or face

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

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

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

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Marshal with sufficient information to effectuate service). Accordingly, Plaintiff must

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provide the Court with these Defendants’ accurate current location such that the Marshal

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is able to effect service.

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B.

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Summonses Issued to Incorrect Location
The summons for Defendants Matthew Cate, Robert Marquez, G. W. Basinger, J.

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M. Perez, S. W. Wohlinend, and T. L. Rosenkrans were also returned unexecuted on

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February 25, 2011. (Docket Nos. 23, 30, 26, 25, 24 & 28.) The Court notes that

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summonses were issued to a place other than where Plaintiff had indicated they were

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located on his complaint. Accordingly, the Court will reissue summons to these

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defendants.

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CONCLUSION

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For the reasons stated above, the Court orders as follows:

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1.

Plaintiff must file notice and provide the Court with the accurate current

Order Directing P to locate Ds; Reissuing Summonses
P:\PRO-SE\SJ.JF\CR.10\Zubiate04127_unserved Ds.wpd

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location of Defendants Beeson and Escobedo such that the Marshal is able to effect

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service. If Plaintiff fails to provide the Court with an accurate current location for them

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within thirty (30) days of the date this order is filed, Plaintiff’s claims against Beeson

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and Escobedo will be dismissed without prejudice pursuant to Rule 4(m) of the Federal

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Rules of Civil Procedure.

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2.

The Clerk of the Court shall reissue summons and the United States

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Marshal shall serve, without prepayment of fees, a copy of the complaint in this matter,

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all attachments thereto, a copy of the Court Order filed February 17, 2011, (Docket No.

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5), and a copy of this order upon Defendants Matthew Cate, S. W. Wohlinend, and T.

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L. Rosenkrans at the California Department of Corrections and Rehabilitation in

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Sacramento, and Defendants Robert Marquez, G. W. Basinger and J. M. Perez at the

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California State Prison, Corcoran. The Clerk shall also mail a courtesy copy of this

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order to the California Attorney General’s Office.

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3.

Defendants shall file a motion for summary judgment or other dispositive

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motion with respect to the claims in the complaint found to be cognizable, and briefing

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shall proceed thereafter, in accordance with the schedule and instructions set forth in the

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Court’s Order of Service, filed February 17, 2011. (Docket No. 5.)

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

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Order Directing P to locate Ds; Reissuing Summonses
P:\PRO-SE\SJ.JF\CR.10\Zubiate04127_unserved Ds.wpd

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

JAVIER A. ZUBIATE,

Case Number: CV10-04127 JF

Plaintiff,

CERTIFICATE OF SERVICE

v.
MATTHEW CATE, et al.,
Defendants.

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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.

Javier Zubiate J-83189
Pelican Bay State Prison
P.O. Box 7500
S.H.U. D-1-115
Crescent City, CA 95532
Dated: 4/22/11
Richard W. Wieking, Clerk