Baker v. Lewis et al
Filing
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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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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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THESOLONIA BAKER,
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Plaintiff,
v.
LEWIS, et al.,
Defendants.
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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
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complaint pursuant to 42 U.S.C. § 1983 challenging the conditions of his confinement at Pelican
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Bay State Prison (“PBSP”). On October 10, 2012, the Court issued an order of service. (Docket
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No. 40.) On October 17, 2012, notices of lawsuit and request for waiver of service of summons
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were mailed to Defendant D. Hamilton and Defendant Dutra. (Docket Nos. 41, 46.) The
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litigation office technician at PBSP returned the documents sent to these Defendants because he
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was “unable to identify these persons as ever working at Pelican Bay State Prison.” (Docket No.
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58.) Defendant D. Hamilton and Defendant Dutra remain unserved.
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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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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
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defendant and attempt to remedy any apparent defects of which [he] has knowledge.” Rochon v.
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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). Because Plaintiff has not provided sufficient information to
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allow the Marshal to locate and serve Defendant D. Hamilton and Defendant Dutra, Plaintiff
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must remedy the situation or face dismissal of his claims against Defendant D. Hamilton and
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Defendant Dutra without prejudice. See Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th Cir.
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1994) (holding prisoner failed to show cause why prison official should not be dismissed under
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Rule 4(m) where prisoner failed to show he had provided Marshal with sufficient information to
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effectuate service).
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Plaintiff must provide the Court with more identification information for Defendant D.
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Hamilton and Defendant Dutra such that the Marshal is able to effect service. If Plaintiff fails
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to provide the Court with more identification information for Defendant D. Hamilton and
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Defendant Dutra within thirty (30) days of the date this order is filed, Plaintiff’s claim
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against these Defendants will be dismissed without prejudice pursuant to Rule 4(m) of the
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Federal Rules of Civil Procedure.
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IT IS SO ORDERED.
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DATED:
4/19/13
LUCY H. KOH
United States District Judge
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Order Directing Plaintiff to Provide Court with More Information for
Defendant D. Hamilton and Defendant Dutra
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G:\PRO-SE\SJ.LHK\CR.11\Baker493moreinfo.wpd
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