Treglia v. Kerman et al

Filing 49

ORDER DIRECTING PLAINTIFF TO PROVIDE COURT WITH MORE INFORMATION FOR DEFENDANT NURSE SMITH. Signed by Judge Lucy H. Koh on 4/9/13. (Attachments: # 1 Certificate/Proof of Service)(mpb, COURT STAFF) (Filed on 4/10/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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DANIEL TREGLIA,

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Plaintiff,
v.

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SCOTT KERNAN, et al.,
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Defendants.
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No. C 12-2522 LHK (PR)
ORDER DIRECTING PLAINTIFF
TO PROVIDE COURT WITH
MORE INFORMATION FOR
DEFENDANT NURSE SMITH

Plaintiff, a California state prisoner proceeding pro se, filed an amended civil rights

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action under 42 U.S.C. § 1983, against prison officials at Pelican Bay State Prison. (“PBSP”).

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On September 7, 2012, the Court found that Plaintiff a stated cognizable claim of deliberate

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indifference against Defendant Nurse Smith and issued an order of service. (Docket No. 4.) On

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September 17, 2012 a notice of lawsuit and request for waiver of service of summons was mailed

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to Defendant Nurse Smith at PBSP. (Docket No. 8.) The litigation office technician at PBSP

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returned the documents sent to Defendant Nurse Smith because he was “unable to identify a

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‘Nurse Smith’ as working at Pelican Bay State Prison.” (Docket No. 47.) Defendant Nurse

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Smith remains 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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defendant and attempt to remedy any apparent defects of which [he] has knowledge.” Rochon v.
Order Directing Plaintiff to Provide Court with More Information for Defendant Smith
G:\PRO-SE\SJ.LHK\CR.12\Treglia522moreinfo-smith.wpd

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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 Nurse Smith, Plaintiff must remedy the

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situation or face dismissal of his claims against Defendant Nurse Smith without prejudice. See

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Walker v. 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 show he

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had provided Marshal with sufficient information to effectuate service).

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Plaintiff must file notice and provide the Court with more identification information for

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Defendant Nurse Smith such that the Marshal is able to effect service. If Plaintiff fails to

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provide the Court with more identification information for Defendant Nurse Smith within

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thirty (30) days of the date this order is filed, Plaintiff’s claim against this Defendant will

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

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Procedure.

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IT IS SO ORDERED.
4/9/13
DATED:

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LUCY H. KOH
United States District Judge

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Order Directing Plaintiff to Provide Court with More Information for Defendant Smith
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G:\PRO-SE\SJ.LHK\CR.12\Treglia522moreinfo-smith.wpd