Patten v. Brown

Filing 147

ORDER DISMISSING DEFENDANT DR. C. STONE. Signed by Judge Lucy H. Koh on 3/20/13. (Attachments: # 1 Certificate/Proof of Service)(mpb, COURT STAFF) (Filed on 3/21/2013)

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 DISMISSING
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.) The Court ordered service of Plaintiff’s SAC upon

20

the named Defendants. (Doc. No. 107.) A Notice of Lawsuit and a Request for Waiver of

21

Service of Summons were mailed to Defendant Dr. C. Stone. (Doc. No. 108.) The documents

22

were unable to be delivered to Defendant Dr. C. Stone because “he no longer works for the

23

California Department of Corrections and Rehabilitation.” (Doc. No. 114-1.) On February 1,

24

2013, Plaintiff was ordered to provide the Court with an accurate current location for Defendant

25

Dr. C. Stone such that the Marshal could serve Defendant. Plaintiff was advised that if he failed

26

to provide the Court with an accurate current location for Defendant Dr. C. Stone within thirty

27

days, Plaintiff’s claims against Defendant Dr. C. Stone would be dismissed without prejudice

28
Order Dismissing Defendant Dr. C. Stone
G:\PRO-SE\SJ.LHK\CR.11\Patten057dism4a_Stone.wpd

1

pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. In response to the Court’s Order,

2

Plaintiff submits that Defendant Dr. C. Stone can be located at San Quentin State Prison, Main

3

Dental Clinic. (Doc. No. 141.) However, the information provided by Plaintiff is neither new

4

nor different than the information previously provided and therefore does not help to facilitate

5

service.

6

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

7

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

8

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

9

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

10
11

Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987).
Plaintiff’s complaint has been pending for over 120 days. Plaintiff has not provided

12

sufficient information to allow the Marshal to locate and serve Defendant Dr. C. Stone. For the

13

reasons stated above, Defendant Dr. C. Stone is DISMISSED pursuant to Federal Rule of Civil

14

Procedure 4(m).

15
16
17

IT IS SO ORDERED.
DATED:

3/20/13
LUCY H. KOH
United States District Judge

18
19
20
21
22
23
24
25
26
27
28
Order Dismissing Defendant Dr. C. Stone
G:\PRO-SE\SJ.LHK\CR.11\Patten057dism4a_Stone.wpd

2