Abbott v. Tootell et al

Filing 81

ORDER OF SERVICE ON DEFENDANT WARDEN CULLEN; ORDER DIRECTING PLAINTIFF TO PROVIDE MORE INFORMATION FOR UNSERVED DEFENDANTS Dispositive Motion due by 5/13/2013. Signed by Judge Lucy H. Koh on 3/11/13. (Attachments: # 1 Certificate/Proof of Service)(mpb, COURT STAFF) (Filed on 3/12/2013)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 11 JOE ABBOTT, 12 13 14 15 Plaintiff, v. DOCTOR E. TOOTELL, et al., Defendants. ) ) ) ) ) ) ) ) ) ) No. C 11-0183 LHK (PR) ORDER OF SERVICE ON DEFENDANT WARDEN CULLEN; ORDER DIRECTING PLAINTIFF TO PROVIDE MORE INFORMATION FOR UNSERVED DEFENDANTS 16 17 Plaintiff, a state prisoner proceeding pro se, filed an amended civil rights complaint 18 pursuant to 42 U.S.C. § 1983. (Doc. No. 56.) Summonses were issued to ten Defendants on 19 November 28, 2012. (See Doc. Nos. 58-67.) Summonses were returned unexecuted for five of 20 the ten Defendants. (See Doc. Nos. 75-79.) Defendants Warden Wong, Warden Cullen, 21 Correctional Officer (“C/O”) McGee, C/O Asocion and Associate Warden Dacaney have not 22 been served. The Prison Litigation Coordinator (“PLC”) at San Quentin State Prison (“SQSP”) 23 indicated that Defendants Warden Wong and Associate Warden Dacaney have retired and 24 have left no forwarding address, and that more information is needed to identify Defendants 25 C/O McGee and C/O Asocion. The PLC informed the Court that Defendant Warden Cullen is 26 currently employed at the California Medical Facility (“CMF”). 27 Although a plaintiff who is incarcerated and proceeding in forma pauperis may rely on 28 service by the Marshal, such plaintiff “may not remain silent and do nothing to effectuate such Order of Service on Def. Warden Cullen; Order Directing Plaintiff to Provide More Info. for Unserved Defendants G:\PRO-SE\SJ.LHK\CR.11\Abbott183moreinfo.wpd 1 service”; rather, “[a]t a minimum, a plaintiff should request service upon the appropriate 2 defendant and attempt to remedy any apparent defects of which [he] has knowledge.” Rochon v. 3 Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987). Here, Plaintiff’s complaint has been pending for 4 over 120 days, and thus, absent a showing of “good cause,” is subject to dismissal without 5 prejudice. See Fed. R. Civ. P. 4(m). Because Plaintiff has not provided sufficient information to 6 effectuate service of Defendants Warden Wong, C/O McGee, C/O Asocion and Associate 7 Warden Dacaney, Plaintiff must remedy the situation or face dismissal of his claims against 8 these Defendants without prejudice. See Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 9 1994) (holding prisoner failed to show cause why prison official should not be dismissed under 10 Rule 4(m) where prisoner failed to show he had provided Marshal with sufficient information to 11 effectuate service). 12 13 CONCLUSION 1. Plaintiff is directed to provide the court with additional location and identification 14 information for Defendants Warden Wong, C/O McGee, C/O Asocion and Associate Warden 15 Dacaney, sufficient to effectuate service, within twenty-eight (28) days from the filing date of 16 this order. 17 2. The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of 18 Service of Summons, two copies of the Waiver of Service of Summons, a copy of the amended 19 complaint (docket no. 56), all attachments thereto, the Court’s Order dated January 24, 2012 20 (Doc. No. 41.), and this order to Defendant Warden Cullen, former Warden of San Quentin 21 State Prison, at California Medical Facility, P.O. Box 2000, Vacaville, CA 95696-2000. The 22 Clerk shall also mail a copy of this Order to Plaintiff and Deputy Attorney General Jose Alfonso 23 Zelidon-Zepeda. 24 3. Defendant Warden Cullen is cautioned that Rule 4 of the Federal Rules of Civil 25 Procedure requires him to cooperate in saving unnecessary costs of service of the summons and 26 complaint. Pursuant to Rule 4, if Defendant, after being notified of this action and asked by the 27 Court, on behalf of Plaintiff, to waive service of the summons, fails to do so, he will be required 28 to bear the cost of such service unless good cause be shown for his failure to sign and return the Order of Service on Def. Warden Cullen; Order Directing Plaintiff to Provide More Info. for Unserved Defendants 2 G:\PRO-SE\SJ.LHK\CR.11\Abbott183moreinfo.wpd 1 waiver form. If service is waived, this action will proceed as if Defendant had been served on 2 the date that the waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendant will not be 3 required to serve and file an answer before sixty (60) days from the date on which the request 4 for waiver was sent. (This allows a longer time to respond than would be required if formal 5 service of summons is necessary.) Defendant is asked to read the statement set forth at the 6 bottom of the waiver form that more completely describes the duties of the parties with regard to 7 waiver of service of the summons. If service is waived after the date provided in the Notice but 8 before Defendant has been personally served, the Answer shall be due sixty (60) days from the 9 date on which the request for waiver was sent or twenty (20) days from the date the waiver form 10 11 is filed, whichever is later. 4. No later than ninety (90) days from the date of this order, Defendants shall file a 12 motion for summary judgment or other dispositive motion with respect to the cognizable claims 13 in the complaint. 14 a. If Defendants elect to file a motion to dismiss on the grounds that Plaintiff 15 failed to exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a), 16 defendants shall do so in an unenumerated Rule 12(b) motion pursuant to Wyatt v. Terhune, 315 17 F.3d 1108, 1119-20 (9th Cir. 2003). 18 b. Any motion for summary judgment shall be supported by adequate factual 19 documentation and shall conform in all respects to Rule 56 of the Federal Rules of Civil 20 Procedure. Defendant is advised that summary judgment cannot be granted, nor qualified 21 immunity found, if material facts are in dispute. If Defendant is of the opinion that this 22 case cannot be resolved by summary judgment, he shall so inform the Court prior to the 23 date the summary judgment motion is due. 24 25 26 27 28 5. All other deadlines shall remain in effect in accordance with the Court’s order filed January 24, 2012. (Doc. No. 41.) IT IS SO ORDERED. DATED: 3/11/13 LUCY H. KOH United States District Judge Order of Service on Def. Warden Cullen; Order Directing Plaintiff to Provide More Info. for Unserved Defendants 3 G:\PRO-SE\SJ.LHK\CR.11\Abbott183moreinfo.wpd

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