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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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JOE ABBOTT,

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Plaintiff,
v.
DOCTOR E. TOOTELL, et al.,
Defendants.

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No. C 11-0183 LHK (PR)
ORDER OF SERVICE ON
DEFENDANT WARDEN
CULLEN; ORDER DIRECTING
PLAINTIFF TO PROVIDE
MORE INFORMATION FOR
UNSERVED DEFENDANTS

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Plaintiff, a state prisoner proceeding pro se, filed an amended civil rights complaint

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pursuant to 42 U.S.C. § 1983. (Doc. No. 56.) Summonses were issued to ten Defendants on

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November 28, 2012. (See Doc. Nos. 58-67.) Summonses were returned unexecuted for five of

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the ten Defendants. (See Doc. Nos. 75-79.) Defendants Warden Wong, Warden Cullen,

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Correctional Officer (“C/O”) McGee, C/O Asocion and Associate Warden Dacaney have not

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been served. The Prison Litigation Coordinator (“PLC”) at San Quentin State Prison (“SQSP”)

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indicated that Defendants Warden Wong and Associate Warden Dacaney have retired and

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have left no forwarding address, and that more information is needed to identify Defendants

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C/O McGee and C/O Asocion. The PLC informed the Court that Defendant Warden Cullen is

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currently employed at the California Medical Facility (“CMF”).

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

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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
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service”; rather, “[a]t a minimum, a plaintiff should request service upon the appropriate

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defendant and attempt to remedy any apparent defects of which [he] has knowledge.” Rochon v.

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Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987). Here, Plaintiff’s complaint has been pending for

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over 120 days, and thus, absent a showing of “good cause,” is subject to dismissal without

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prejudice. See Fed. R. Civ. P. 4(m). Because Plaintiff has not provided sufficient information to

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effectuate service of Defendants Warden Wong, C/O McGee, C/O Asocion and Associate

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Warden Dacaney, Plaintiff must remedy the situation or face dismissal of his claims against

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these Defendants without prejudice. See Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th Cir.

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1994) (holding prisoner failed to show cause why prison official should not be dismissed under

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Rule 4(m) where prisoner failed to show he had provided Marshal with sufficient information to

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effectuate service).

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CONCLUSION
1.

Plaintiff is directed to provide the court with additional location and identification

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information for Defendants Warden Wong, C/O McGee, C/O Asocion and Associate Warden

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Dacaney, sufficient to effectuate service, within twenty-eight (28) days from the filing date of

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this order.

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2.

The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of

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Service of Summons, two copies of the Waiver of Service of Summons, a copy of the amended

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complaint (docket no. 56), all attachments thereto, the Court’s Order dated January 24, 2012

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(Doc. No. 41.), and this order to Defendant Warden Cullen, former Warden of San Quentin

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State Prison, at California Medical Facility, P.O. Box 2000, Vacaville, CA 95696-2000. The

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Clerk shall also mail a copy of this Order to Plaintiff and Deputy Attorney General Jose Alfonso

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Zelidon-Zepeda.

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3.

Defendant Warden Cullen is cautioned that Rule 4 of the Federal Rules of Civil

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Procedure requires him to cooperate in saving unnecessary costs of service of the summons and

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complaint. Pursuant to Rule 4, if Defendant, after being notified of this action and asked by the

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Court, on behalf of Plaintiff, to waive service of the summons, fails to do so, he will be required

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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
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waiver form. If service is waived, this action will proceed as if Defendant had been served on

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the date that the waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendant will not be

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required to serve and file an answer before sixty (60) days from the date on which the request

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for waiver was sent. (This allows a longer time to respond than would be required if formal

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service of summons is necessary.) Defendant is asked to read the statement set forth at the

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bottom of the waiver form that more completely describes the duties of the parties with regard to

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waiver of service of the summons. If service is waived after the date provided in the Notice but

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before Defendant has been personally served, the Answer shall be due sixty (60) days from the

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date on which the request for waiver was sent or twenty (20) days from the date the waiver form

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is filed, whichever is later.
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No later than ninety (90) days from the date of this order, Defendants shall file a

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motion for summary judgment or other dispositive motion with respect to the cognizable claims

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in the complaint.

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a.

If Defendants elect to file a motion to dismiss on the grounds that Plaintiff

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failed to exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a),

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defendants shall do so in an unenumerated Rule 12(b) motion pursuant to Wyatt v. Terhune, 315

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F.3d 1108, 1119-20 (9th Cir. 2003).

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b.

Any motion for summary judgment shall be supported by adequate factual

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documentation and shall conform in all respects to Rule 56 of the Federal Rules of Civil

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Procedure. Defendant is advised that summary judgment cannot be granted, nor qualified

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immunity found, if material facts are in dispute. If Defendant is of the opinion that this

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case cannot be resolved by summary judgment, he shall so inform the Court prior to the

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date the summary judgment motion is due.

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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
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