Patten v. Brown

Filing 131

ORDER DIRECTING PLAINTIFF TO PROVIDE COURT WITH MORE INFORMATION FOR DEFENDANT DR. C. STONE. Signed by Judge Lucy H. Koh on 1/31/13. (Attachments: # 1 Certificate/Proof of Service)(mpb, COURT STAFF) (Filed on 2/1/2013)

Download PDF
1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 11 JASON MCCORD PATTEN, 12 13 Plaintiff, v. 14 DR. C. STONE, et al., 15 Defendants. 16 ) ) ) ) ) ) ) ) ) ) ) No. C 11-2057 LHK (PR) ORDER DIRECTING PLAINTIFF TO PROVIDE COURT WITH MORE INFORMATION FOR DEFENDANT DR. C. STONE 17 Plaintiff, a state prisoner proceeding pro se, filed a second amended civil rights 18 complaint (“SAC”) pursuant to 42 U.S.C. § 1983 challenging the conditions of his confinement 19 at San Quentin State Prison. (Doc. No. 102.) On October 5, 2012, the Court ordered service of 20 Plaintiff’s SAC upon the named Defendants. (Doc. No. 107.)1 On October 17, 2012, Notices of 21 Lawsuit and Requests for Waiver of Service of Summons were mailed to the named Defendants. 22 The documents were unable to be delivered to Defendant Doctor C. Stone because “he no longer 23 works for the California Department of Corrections and Rehabilitation.” (Doc. No. 114-1.) 24 Here, service was attempted by waiver pursuant to Fed. R. Civ. P. 4(d) to avoid the 25 unnecessary cost and time of formal personal service of process pursuant to Fed. R. Civ. P. 4(c). 26 The Rule 4(d) waiver provision does not discharge a plaintiff’s obligation to complete service of 27 28 1 Plaintiff had previously been granted leave to proceed in forma pauperis. (Doc. No. 16.) Order Directing Plaintiff to Provide Court with More Information for Defendant Dr. C. Stone G:\PRO-SE\SJ.LHK\CR.11\Patten057moreinfo.wpd 1 process. If a waiver is not returned, the plaintiff must then proceed with formal service of 2 process in accordance with Rule 4(e). A plaintiff who is incarcerated and proceeding in forma 3 pauperis may rely on service by the Marshal. Fed. R. Civ. P. 4(c)(3). However, both rules 4 require the plaintiff to provide current and accurate locate information for defendants. Fed. R. 5 Civ. P. 4(d)(1)(A)(i); 4(e)(2). Here, the issuance of a summons is futile given that a current and 6 accurate location at which to serve Defendant Stone is unknown. 7 A plaintiff “may not remain silent and do nothing to effectuate [4(e)] service”; rather, 8 “[a]t a minimum, a plaintiff should request service upon the appropriate defendant and attempt to 9 remedy any apparent defects of which [he] has knowledge.” Rochon v. Dawson, 828 F.2d 1107, 10 1110 (5th Cir. 1987). Plaintiff’s SAC has been pending for over 120 days, and thus, absent a 11 showing of “good cause,” is subject to dismissal without prejudice. See Fed. R. Civ. P. 4(m). 12 Because Plaintiff has not provided sufficient information to allow the Marshal to locate 13 and serve Defendant Doctor C. Stone, Plaintiff must remedy the situation or face dismissal of his 14 claims against this defendant without prejudice. See Walker v. Sumner, 14 F.3d 1415, 1421-22 15 (9th Cir. 1994) (holding prisoner failed to show cause why prison official should not be 16 dismissed under Rule 4(m) where prisoner failed to show he had provided Marshal with 17 sufficient information to effectuate service). Accordingly, Plaintiff must provide the Court with 18 an accurate current location for this Defendant such that the Marshal is able to effect service. If 19 Plaintiff fails to provide the Court with an accurate current location for Defendant Doctor C. 20 Stone within thirty (30) days of the date this order is filed, Plaintiff’s claims against this 21 Defendant will be dismissed without prejudice pursuant to Rule 4(m) of the Federal Rules of 22 Civil Procedure. 23 24 25 IT IS SO ORDERED. DATED: 1/31/13 LUCY H. KOH United States District Judge 26 27 28 Order Directing Plaintiff to Provide Court with More Information for Defendant Dr. C. Stone G:\PRO-SE\SJ.LHK\CR.11\Patten057moreinfo.wpd 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?