Opinion
19-02119 BLF (PR)
08-26-2021
JASON SMITH, Plaintiff, v. DR. RACHEL ROSS, et al., Defendant.
ORDER DIRECTING PLAINTIFF TO PROVIDE MORE INFORMATION FOR UNSERVED DEFENDANT RACHEL ROSS
BETH LABSON FREEMAN, United States District Judge.
Plaintiff, a state prisoner at the Correctional Training Facility (“CTF”) in Soledad, filed the instant pro se civil rights action pursuant to 42 U.S.C. § 1983 against CTF personnel. After an initial review, the Court found the complaint stated a cognizable claim under the Eighth Amendment for deliberate indifference to serious medical needs. Dkt. No. 4. Plaintiff has filed notice that he wishes to proceed solely on the Eighth Amendment claim. Dkt. No. 5.
On October 23, 2019, the document mailed to the only remaining Defendant, Dr. Rachel Ross, was returned unexecuted. Dkt. No. 14. The mail to Defendant specifically indicates that she is “no longer with CTF.” Id. 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 Order Directing Plaintiff to Provide More Information for Unserved Defendants PRO-SE\BLF\CR.19\2119Smith2nd.moreinfo 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).
On November 18, 2019, the Court issued an order directing Plaintiff to provide more information for Defendant Ross. Dkt. No. 16. On December 2, 2019, Plaintiff responded with an address for Defendant Ross in Rancho Cordova. Dkt. No. 20. On September 22, 2020, the Court issued a summons and directed the Marshal to serve the complaint on Defendant Ross at the address provided by Plaintiff. Dkt. No. 55. When there was no response, the Court ordered personal service on Defendant Ross on May 7, 2021. Dkt. No. 58. On July 29, 2021, the summons was returned as unexecuted as to Defendant Ross, with a notation, “Wrong address, Suite 210 is empty office space.” Dkt. No. 62.
Plaintiff's complaint has been pending for over 90 days, and thus, absent a showing of “good cause, ” claims against Defendant Ross are subject to dismissal without prejudice. See Fed. R. Civ. P. 4(m). Plaintiff must remedy the situation by providing more information regarding Defendant Ross' current whereabouts or face dismissal of his claims against this Defendant 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).
For the foregoing reasons, the Court orders Plaintiff to file a notice providing the Court with more information regarding the current whereabouts for Defendant Dr. Rachel Ross such that the Marshal can effect service. If Plaintiff fails to provide the Court with the information requested within twenty-eight (28) days of the date this order is filed, Plaintiff's claim against Defendant Ross shall be dismissed without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.
IT IS SO ORDERED.