Henderson v. California Department of Corrections and Rehabilitations et al

Filing 37

ORDER Directing Clerk to Re-Issue Summons on Dr. J.K. Yu; Directing Plaintiff to Provide Court with More Information for Dr. D. Shampain. Signed by Judge Ronald M. Whyte on 7/30/12. (jg, COURT STAFF) (Filed on 7/31/2012)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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CURTIS LEE HENDERSON, SR.,

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Plaintiff,
v.
DR. J. ESPINOZA, et al.,
Defendants.

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No. C 11-4918 RMW (PR)
ORDER DIRECTING CLERK TO
RE-ISSUE SUMMONS ON DR.
J.K. YU; DIRECTING
PLAINTIFF TO PROVIDE
COURT WITH MORE
INFORMATION FOR DR.. D.
SHAMPAIN

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On October 15, 2012, plaintiff, a California state prisoner proceeding pro se, filed a civil

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rights complaint pursuant to 42 U.S.C. § 1983. (Docket No. 1) The court ordered service of

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plaintiff’s complaint on the named defendants at California State Prison-San Quentin (“CSP-

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SQ”). (Docket No. 13.) Summons for defendant Dr. D. Shampain was returned unexecuted

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because Dr. D. Shampain “was a Contract employee and has not worked with CSP-San Quentin

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since on about October 2011.” (Docket No. 33.) Summons for defendant Dr. J.K. Yu was

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returned unexecuted because there was no doctor with that name assigned to CSP-SQ. However,

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the Litigation Coordinator at CSP-SQ noted that “there is a Doctor K. Yu assigned to CSP-

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Corcoran.” (Id.) Defendants Dr. D. Shampain and Dr. J.K. Yu have not been served.

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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
Order Directing Re-issue summons; Plaintiff to Provide More Info
G:\PRO-SE\SJ.Rmw\CR.11\Henderson918reissue_more.info.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,” his claims against defendants Dr. D.

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Shampain and Dr. J.K. Yu are subject to dismissal without prejudice. See Fed. R. Civ. P. 4(m).

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Plaintiff is directed to provide the court with current and accurate location and

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identifying information for defendant Dr. D. Shampain, so that he can be served by the Marshal,

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no later than thirty (30) days from the date this order is filed. If plaintiff fails to provide more

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information for this defendant within thirty (30) days, his claims against this defendant will be

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

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The Clerk of the Court shall re-issue a summons and the United States Marshal shall

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serve, without prepayment of fees, a copy of the complaint in this matter, (docket no. 1), all

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attachments thereto, a copy of the court order filed March 6, 2012, (docket no. 13) and a copy of

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this order upon defendant Dr. K. Yu at California State Prison-Corcoran, 4001 King Avenue,

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P.O. Box 3800, Corcoran, CA 93212-8309. The Clerk shall also mail a courtesy copy of this

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order to the California Attorney General’s Office.

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Defendant Dr. K. Yu shall file a motion for summary judgment or other dispositive

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

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proceed thereafter, in accordance with the schedule and instructions set forth in the Court's Order

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of Service, filed March 6, 2012. (Docket No. 13).

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IT IS SO ORDERED.
DATED:
RONALD M. WHYTE
United States District Judge

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Order Directing Re-issue summons; Plaintiff to Provide More Info
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G:\PRO-SE\SJ.Rmw\CR.11\Henderson918reissue_more.info.wpd

UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

CURTIS LEE HENDERSON SR.,

Case Number: CV11-04918 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
CA DEPT OF CORRECTIONS et al,
Defendant.

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on July 31, 2012, 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.

Curtis Lee Henderson H-43488
Corcoran State Prison
D3-130
P.O. Box 5242
Corcoran, CA 93212
Dated: July 31, 2012
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk