Kidd v. Powell et al

Filing 21

ORDER DIRECTING PLAINTIFF TO PROVIDE COURT WITH MORE INFORMATION FOR UNSERVEDDEFENDANT; DIRECTING CLERK TO ISSUE NOTICE OF LAWSUIT TO DEFENDANT LOPEZ. Plaintiff must file notice and provide the Court with the accurate current location of Defendant J. Martin such that the Marshal is able to effect service. If Plaintiff fails to provide the Court with an accurate current location for this Defendant within thirty (30) days of the date this order is filed, Plaintiff's claims against Martin will be dismissed without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy of the complaint, all attachments thereto, a copy of the Court's Order of Service, and a copy of this order upon Defendant Officer Lopez at Salinas Valley State Prison, (P.O. Box 1020, Soledad, CA 93960-1020). Defendant Lopez shall file a motion for summary judgment or other dispositive motion with respect to the claims in the complaint found to be cognizable, and briefing shall proceed thereafter, in accordance with the schedule and instructions set forth in the Court's Order of Service, filed February 3, 2012. Signed by Judge Edward J. Davila on 3/30/2012. (ecg, COURT STAFF) (Filed on 4/2/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ALFRED R. KIDD,
Plaintiff,
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vs.
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B. POWELL, et al.,
Defendants.

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No. C 11-04260 EJD (PR)

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ORDER DIRECTING PLAINTIFF TO
PROVIDE COURT WITH MORE
INFORMATION FOR UNSERVED
DEFENDANT; DIRECTING CLERK
TO ISSUE NOTICE OF LAWSUIT TO
DEFENDANT LOPEZ

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Plaintiff, a California inmate, filed the instant civil rights action in pro se pursuant

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to 42 U.S.C. § 1983 against Salinas Valley State Prison (“SVSP”) officials. The Court

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ordered service of Plaintiff’s complaint upon the named defendants. (See Docket No.

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18.) The following defendants have not been served.

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DISCUSSION

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A.

Insufficient Location Information
The Waiver of Service of Summons and Complaint for Defendant J. Martin that

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was sent to SVSP, where Plaintiff indicated he was located, was returned undelivered on

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March 6, 2012, with the following remark: “Personnel records for the institution do not

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reflect employment of a person by this name.” (Docket No. 19.) Accordingly, Martin has
Order Directing P to locate Ds; Issue Notice of Lawsuit
G:\PRO-SE\SJ.EJD\CR.11\04260Kidd_unserved Ds.wpd

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not been served.

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

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

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effectuate such service”; rather, “[a]t a minimum, a plaintiff should request service upon

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the appropriate defendant and attempt to remedy any apparent defects of which [he] has

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knowledge.” Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987). Here, Plaintiff’s

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complaint has been pending for over 120 days, and thus, absent a showing of “good

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cause,” is subject to dismissal without prejudice. See Fed. R. Civ. P. 4(m).
Plaintiff has not provided sufficient information to allow the Marshal to locate and

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serve Defendant J. Martin, and consequently Plaintiff must remedy the situation or face

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

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

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why prison official should not be dismissed under Rule 4(m) where prisoner failed to

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show he had provided Marshal with sufficient information to effectuate service).

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Accordingly, Plaintiff must provide the Court with these Defendant’s accurate current

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location such that the Marshal is able to effect service.

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B.

Defendant Officer Lopez

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Plaintiff’s complaint included a claim against Defendant Officer Lopez for failing

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to provide medical attention for the injuries he incurred after the alleged use of excessive

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force by other Defendants on August 18, 2009. (Compl. ¶ 25.) Liberally construed, this

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claim is cognizable as deliberate indifference to Plaintiff’s serious medical needs.

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Accordingly, Defendant Lopez should be served with the complaint.

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CONCLUSION

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For the reasons stated above, the Court orders as follows:

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1.

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

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location of Defendant J. Martin such that the Marshal is able to effect service. If Plaintiff

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fails to provide the Court with an accurate current location for this Defendant
Order Directing P to locate Ds; Issue Notice of Lawsuit
G:\PRO-SE\SJ.EJD\CR.11\04260Kidd_unserved Ds.wpd

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within thirty (30) days of the date this order is filed, Plaintiff’s claims against Martin

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will be dismissed without prejudice pursuant to Rule 4(m) of the Federal Rules of

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Civil Procedure.

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2.

The Clerk of the Court shall mail a Notice of Lawsuit and Request for

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Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy

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of the complaint, all attachments thereto, a copy of the Court’s Order of Service (Docket

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No. 18), and a copy of this order upon Defendant Officer Lopez at Salinas Valley State

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Prison, (P.O. Box 1020, Soledad, CA 93960-1020).

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3.

Defendant Lopez shall file a motion for summary judgment or other

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dispositive motion with respect to the claims in the complaint found to be cognizable, and

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briefing shall proceed thereafter, in accordance with the schedule and instructions set

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forth in the Court’s Order of Service, filed February 3, 2012, (Docket No. 18).

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DATED:

3/30/2012

EDWARD J. DAVILA
United States District Judge

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Order Directing P to locate Ds
G:\PRO-SE\SJ.EJD\CR.11\04260Kidd_unserved Ds.wpd

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

ALFRED R. KIDD,

Case Number: CV11-04260 EJD

Plaintiff,

CERTIFICATE OF SERVICE

v.
B. POWELL, et al.,
Defendants.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
4/2/2012
That on
, I SERVED a true and correct copy(ies) of the
attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s)
hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into
an inter-office delivery receptacle located in the Clerk's office.

Alfred R. Kidd K-55068
Mule Creek State Prison
P. O. Box 409099
Ione, CA 95640-0066
Dated:

4/2/2012
Richard W. Wieking, Clerk
/s/By: Elizabeth Garcia, Deputy Clerk