Opinion
Case No. 14-cv-04674-HSG (PR)
09-01-2015
AARON ATLEE PARSONS, Plaintiff, v. ALAMEDA COUNTY SHERIFF DEPARTMENT, et al., Defendants.
ORDER DIRECTING PLAINTIFF TO SERVE OR TO PROVIDE LOCATION OF UNSERVED DEFENDANT
Plaintiff, a California prisoner proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983. On June 22, 2015, the Court screened plaintiff's first amended complaint and found that it stated a cognizable Eighth Amendment claim of deliberate indifference to safety. Service has been ordered on eight defendants, including plaintiff's former public defender, Judith A. Browne, for whom plaintiff provided a home address for service.
On July 31, 2015, the summons for defendant Browne was returned unexecuted with the following remark by the United States Marshal: "Spoke with property manager. House is a rental. Browne moved out late 2014. Location unknown." Docket No. 24. Accordingly, defendant Browne has not been served.
Although a plaintiff who is incarcerated and proceeding in forma pauperis may rely on service by the Marshal, such plaintiff "may not remain silent and do nothing to effectuate such service;" rather, "[a]t a minimum, a plaintiff should request service upon the appropriate defendant and attempt to remedy any apparent defects of which [he] has knowledge." Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987). Absent a showing of "good cause," a complaint pending for over 120 days 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 serve defendant Browne. Consequently, plaintiff must remedy the situation or face dismissal of his claims against Browne without prejudice. See Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 1994) (holding prisoner failed to show cause why prison official should not be dismissed under Rule 4(m) where prisoner failed to show he had provided Marshal with sufficient information to effectuate service).
Accordingly, within sixty (60) days of the date this order is filed, plaintiff must effect service on defendant Browne, or submit to the Court sufficient information to identify and locate defendant Browne such that the Marshal is able to effect service. Failure to do so will result in dismissal of defendant Browne without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.
IT IS SO ORDERED. Dated: 9/1/2015
/s/_________
HAYWOOD S. GILLIAM, JR.
United States District Judge