Zubiate v. Cate et al

Filing 49

ORDER DIRECTING PLAINTIFF TO PROVIDE COURT WITH LOCATION INFORMATION FOR UNSERVED DEFENDANTS. Signed by Judge Jeremy Fogel on 5/6/11. (dlm, COURT STAFF) (Filed on 5/23/2011)

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NOT FOR CITATION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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vs.
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MATTHEW CATE, et al.,

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No. C 10-04127 JF (PR)

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Defendants.

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

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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 summonses for Defendants J. Bales and R. Phillips were returned unexecuted
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on April 29, 2011, with the following remark: “No longer at the facility. The facility will
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Order Directing P to locate Ds; Reissuing Summonses
P:\PRO-SE\SJ.JF\CR.10\Zubiate04127_unserved Ds-2.wpd

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not accept service.” (Docket Nos. 39 & 40.) Accordingly, Bales and Phillips have not

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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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Bales and Phillips, and consequently Plaintiff must remedy the situation or face dismissal

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of his claims against these defendants without prejudice. See Walker v. Sumner, 14 F.3d

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at 1421-22 (holding prisoner failed to show cause why prison official should not be

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dismissed under Rule 4(m) where prisoner failed to show he had provided Marshal with

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sufficient information to effectuate service). Accordingly, Plaintiff must provide the

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Court with these Defendants’ accurate current location such that the Marshal is able to

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effect service.

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CONCLUSION

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

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of Defendants Bales and Phillips such that the Marshal is able to effect service. If

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Plaintiff fails to provide the Court with an accurate current location for them within

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

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Phillips 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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IT IS SO ORDERED.
DATED:

5/6/11

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-2.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.
5/23/11
That on
, 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:

5/23/11
Richard W. Wieking, Clerk