Andrews v. Aurelio et al

Filing 40

ORDER DIRECTING PLAINTIFF TO PROVIDE COURT WITH MORE INFORMATION FOR UNSERVED DEFENDANTS. Signed by Judge Lucy H. Koh on 6/26/12. (Attachments: # 1 cert of service)(mpb, COURT STAFF) (Filed on 6/27/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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DAVID RAYMOND ANDREWS,
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Plaintiff,
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v.
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J. AURELIO, et al.,
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Defendants.
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No. C 11-2526 LHK (PR)
ORDER DIRECTING

PLAINTIFF TO PROVIDE
COURT WITH MORE
INFORMATION FOR
UNSERVED DEFENDANTS

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Plaintiff, proceeding pro se, filed a second amended civil rights complaint pursuant to 42

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U.S.C. § 1983. (Docket No. 24.) The Court ordered service of Plaintiff’s second amended

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complaint upon the named Defendants. (Docket No. 27.)

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On April 4, 2012, Notices of Lawsuit and Requests for Waiver of Service of Summons

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were mailed to the named Defendants. The documents were unable to be delivered to

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Defendants J. Aurelio, R. Carriedo and H. Ortiz. According to the Litigation Office at Pelican

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Bay State Prison (“PBSP”), J. Aurelio and R. Carriedo did not work at the prison. (Docket Nos.

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28 and 29.) The Court has received no information as to the status of Defendant H. Ortiz,

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however, the Waiver of Summons sent to him has not been returned to the Court.

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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

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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.
Order Directing Plaintiff to Provide Info for Unserved Defendants
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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).

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

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and serve Defendants J. Aurelio, R. Carriedo, and H. Ortiz, Plaintiff must remedy the situation or

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face dismissal of his claims against these defendants without prejudice. See Walker v. Sumner,

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14 F.3d 1415, 1421-22 (9th Cir. 1994) (holding prisoner failed to show cause why prison official

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should not be dismissed under Rule 4(m) where prisoner failed to show he had provided Marshal

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with sufficient information to effectuate service). Accordingly, Plaintiff must provide the Court

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with an accurate current location for these Defendants such that the Marshal is able to effect

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service.

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In the interest of justice, the Litigation Coordinator at PBSP is requested to provide more

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information about the employment status of Defendants J. Aurelio, R. Carriedo, and H. Ortiz.

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The request inquires whether the named Defendants were former employees of PBSP, and if they

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are currently employees of the California Department of Corrections and Rehabilitation

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(“CDCR”). If they are former employees of PBSP, but still employed with CDCR, the Litigation

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Coordinator is requested to provide current employment addresses for these Defendants. If they

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are former employees but no longer employed with CDCR, the Litigation Coordinator is

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requested to provide a forwarding address, or notice that such information is not available. The

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Clerk shall forward a copy of this order to the Litigation Coordinator at Pelican Bay State Prison,

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5905 Lake Earl Drive, Crescent City, CA 95532, who is requested to provide the current

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employment status for Defendants J. Aurelio, R. Carriedo and H. Ortiz, and any available

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forwarding address, or notice that such information is not available, within twenty (20) days

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from the date this order is filed.

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Plaintiff must file notice and provide the Court with an accurate current

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location of Defendants J. Aurelio, R. Carriedo, and H. Ortiz such that the Marshal is able to

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effect service. If Plaintiff fails to provide the Court with an accurate current location for

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Defendants J. Aurelio, R. Carriedo and H. Ortiz within thirty (30) days of the date this order is
Order Directing Plaintiff to Provide Info for Unserved Defendants
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filed, Plaintiff's claims against these Defendants will be dismissed without prejudice pursuant to

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Rule 4(m) of the Federal Rules of Civil Procedure.

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IT IS SO ORDERED.

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DATED:

6/26/12
LUCY H. KOH
United States District Judge

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Order Directing Plaintiff to provide more info.
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