Patten v. Brown

Filing 115

ORDER DIRECTING PLAINTIFF TO PROVIDE COURT WITH MORE INFORMATION FOR UNSERVED DEFENDANT. Signed by Judge Lucy H. Koh on 11/19/12. (Attachments: # 1 Certificate/Proof of Service)(mpb, COURT STAFF) (Filed on 11/20/2012)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JASON MCCORD PATTEN,

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Plaintiff,
v.

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DR. C. STONE, et al.,
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Defendants.
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No. C 11-2057 LHK (PR)
ORDER DIRECTING
PLAINTIFF TO PROVIDE
COURT WITH MORE
INFORMATION FOR
UNSERVED DEFENDANT

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

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(“SAC”) pursuant to 42 U.S.C. § 1983 challenging the conditions of his confinement at San

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Quentin State Prison. (Doc. No. 102.) On October 5, 2012, the Court ordered service of

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Plaintiff’s SAC upon the named Defendants. (Doc. No. 107.)1 On October 17, 2012, Notices of

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Lawsuit and Requests for Waiver of Service of Summons were mailed to the named Defendants.

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The documents were unable to be delivered to Defendant Doctor C. Stone because “he no longer

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works for the California Department of Corrections and Rehabilitation.” (Doc. No. 114-1.)

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Here, service was attempted by waiver pursuant to Fed. R. Civ. P. 4(d) to avoid the

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unnecessary cost and time of formal personal service of process pursuant to Fed. R. Civ. P. 4(c).

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The Rule 4(d) waiver provision does not discharge a plaintiff’s obligation to complete service of

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Plaintiff had previously been granted leave to proceed in forma pauperis. (Doc. No. 16.)

Order Directing Plaintiff to Provide Court with More Information for Unserved Defendant
G:\PRO-SE\SJ.LHK\CR.11\Patten057moreinfo.wpd

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process. If a waiver is not returned, the plaintiff must then proceed with formal service of

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process in accordance with Rule 4(e). A Plaintiff who is incarcerated and proceeding in forma

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pauperis may rely on service by the Marshal. Fed. R. Civ. P. 4(c)(3). However, both rules

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require the plaintiff to provide current and accurate locate information for defendants. Fed. R.

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Civ. P. 4(d)(1)(A)(i); 4(e)(2). Here, the issuance of a summons is futile given that a current and

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accurate location at which to serve Defendant Stone is unknown.

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A plaintiff “may not remain silent and do nothing to effectuate [4(e)] service”; rather,

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“[a]t a minimum, a plaintiff should request service upon the appropriate defendant and attempt to

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remedy any apparent defects of which [he] has knowledge.” Rochon v. Dawson, 828 F.2d 1107,

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1110 (5th Cir. 1987). Plaintiff’s SAC has been pending for over 120 days, and thus, absent a

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showing of “good cause,” is subject to dismissal without prejudice. See Fed. R. Civ. P. 4(m).

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Because Plaintiff has not provided sufficient information to allow the Marshal to locate

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and serve Defendant Doctor C. Stone, Plaintiff must remedy the situation or face dismissal of his

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claims against this defendant without prejudice. See Walker v. Sumner, 14 F.3d 1415, 1421-22

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(9th Cir. 1994) (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 Court with

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an accurate current location for this Defendant 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 Defendant Doctor C.

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

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Defendant will be dismissed without prejudice pursuant to Rule 4(m) of the Federal Rules of

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Civil Procedure.

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IT IS SO ORDERED.
DATED:

11/19/12
LUCY H. KOH
United States District Judge

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Order Directing Plaintiff to Provide Court with More Information for Unserved Defendant
G:\PRO-SE\SJ.LHK\CR.11\Patten057moreinfo.wpd

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