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)

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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 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

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