Baker v. Lewis et al

Filing 59

ORDER DIRECTING PLAINTIFF TO PROVIDE COURT WITH MORE INFORMATION FOR DEFENDANT D. HAMILTON AND DEFENDANT DUTRA. Signed by Judge Lucy H. Koh on 4/19/13. (Attachments: # 1 Certificate/Proof of Service)(mpb, COURT STAFF) (Filed on 4/22/2013)

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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 THESOLONIA BAKER, 12 13 14 15 16 17 Plaintiff, v. LEWIS, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) No. C 11-3493 LHK (PR) ORDER DIRECTING PLAINTIFF TO PROVIDE COURT WITH MORE INFORMATION FOR DEFENDANT D. HAMILTON AND DEFENDANT DUTRA Plaintiff, a state prisoner proceeding pro se, filed a second amended civil rights 18 complaint pursuant to 42 U.S.C. § 1983 challenging the conditions of his confinement at Pelican 19 Bay State Prison (“PBSP”). On October 10, 2012, the Court issued an order of service. (Docket 20 No. 40.) On October 17, 2012, notices of lawsuit and request for waiver of service of summons 21 were mailed to Defendant D. Hamilton and Defendant Dutra. (Docket Nos. 41, 46.) The 22 litigation office technician at PBSP returned the documents sent to these Defendants because he 23 was “unable to identify these persons as ever working at Pelican Bay State Prison.” (Docket No. 24 58.) Defendant D. Hamilton and Defendant Dutra remain unserved. 25 Although a plaintiff who is incarcerated and proceeding in forma pauperis may rely on 26 service by the Marshal, such plaintiff “may not remain silent and do nothing to effectuate such 27 service”; rather, “[a]t a minimum, a plaintiff should request service upon the appropriate 28 Order Directing Plaintiff to Provide Court with More Information for Defendant D. Hamilton and Defendant Dutra G:\PRO-SE\SJ.LHK\CR.11\Baker493moreinfo.wpd 1 defendant and attempt to remedy any apparent defects of which [he] has knowledge.” Rochon v. 2 Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987). Here, Plaintiff’s complaint has been pending for 3 over 120 days, and thus, absent a showing of “good cause,” is subject to dismissal without 4 prejudice. See Fed. R. Civ. P. 4(m). Because Plaintiff has not provided sufficient information to 5 allow the Marshal to locate and serve Defendant D. Hamilton and Defendant Dutra, Plaintiff 6 must remedy the situation or face dismissal of his claims against Defendant D. Hamilton and 7 Defendant Dutra without prejudice. See Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 8 1994) (holding prisoner failed to show cause why prison official should not be dismissed under 9 Rule 4(m) where prisoner failed to show he had provided Marshal with sufficient information to 10 effectuate service). 11 Plaintiff must provide the Court with more identification information for Defendant D. 12 Hamilton and Defendant Dutra such that the Marshal is able to effect service. If Plaintiff fails 13 to provide the Court with more identification information for Defendant D. Hamilton and 14 Defendant Dutra within thirty (30) days of the date this order is filed, Plaintiff’s claim 15 against these Defendants will be dismissed without prejudice pursuant to Rule 4(m) of the 16 Federal Rules of Civil Procedure. 17 IT IS SO ORDERED. 18 19 DATED: 4/19/13 LUCY H. KOH United States District Judge 20 21 22 23 24 25 26 27 28 Order Directing Plaintiff to Provide Court with More Information for Defendant D. Hamilton and Defendant Dutra 2 G:\PRO-SE\SJ.LHK\CR.11\Baker493moreinfo.wpd

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