Zubiate v. Cate et al

Filing 71

ORDER DIRECTING PLAINTIFF TO PROVIDE COURT WITH IDENTIFICATION INFORMATION FOR UNSERVED DEFENDANTS. Signed by Judge Jeremy Fogel on 7/6/11. (dlm, COURT STAFF) (Filed on 7/28/2011)

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NOT FOR CITATION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

JAVIER ZUBIATE,
12

Plaintiff,
13

vs.
14
15

MATTHEW CATE, et al.,

16

Defendants.

17

No. C 10-04127 JF (PR)

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

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

18

Plaintiff, a prisoner currently incarcerated at the Pelican Bay State Prison, filed the
19

instant civil rights action in pro se pursuant to 42 U.S.C. § 1983 against prison officials
20

for allegedly unconstitutional acts. The Court ordered service of Plaintiff’s complaint
21

upon the named defendants. (See Docket No. 5.) The following defendants have not
22

been served.
23
24

DISCUSSION
25

A.

More Identification Information Needed

26

The summonses for Defendants J. Beeson and J. M. Escobedo were returned
27

unexecuted on February 25, 2011, with the following remark: “Subject is no longer at the
28
Order Directing P to Provide Ident. Information
P:\PRO-SE\SJ.JF\CR.10\Zubiate04127_unserved Ds-5.wpd

1

1

facility. The facility will not accept service.” (Docket Nos. 27 & 29.) The Court directed

2

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

3

the Marshal is able to effect service. (Docket No. 31.) On May 27, 2011, Plaintiff filed

4

location information where he alleged these Defendants were located. (Docket No. 52.)

5

Accordingly, the Clerk reissued summonses to Defendants Beeson and Escobedo, at the

6

California Department of Corrections in Sacramento. (Docket Nos. 53 & 54.) On June

7

15, 2011, the summonses for Beeson and Escobedo were again returned unexecuted, with

8

remarks stating that there is more than one “J. Beeson” and more than one “J. Escobedo”

9

at the location, and that more information was needed to effect service. (Docket Nos. 65

10

& 65.)

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

provide the Court with further identification information for these Defendants, e.g., their

25

first names and/or badge numbers, such that the Marshal is able to effect service.

26

///

27

///

28

///
Order Directing P to Provide Ident. Information
P:\PRO-SE\SJ.JF\CR.10\Zubiate04127_unserved Ds-5.wpd

2

1

CONCLUSION

2

Plaintiff must file notice and provide the Court with additional identification

3

information for Defendants Beeson and Escobedo, e.g., their first names and/or badge

4

numbers, such that the Marshal is able to effect service. If Plaintiff fails to provide the

5

Court with this information within thirty (30) days of the date this order is filed,

6

Plaintiff’s claims against Beeson and Escobedo will be dismissed without prejudice

7

pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.

8
9

IT IS SO ORDERED.
DATED: 7/6/11
JEREMY FOGEL
United States District Judge

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Order Directing P to Provide Ident. Information
P:\PRO-SE\SJ.JF\CR.10\Zubiate04127_unserved Ds-5.wpd

3

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.

/

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 7/6/11
, 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: 7/6/11
Richard W. Wieking, Clerk