Opinion
No. C 14-4278 RS (PR)
10-20-2015
TYRONE YOUNGS, Plaintiff, v. THE PEOPLE OF THE STATE OF CALIFORNIA, et al., Defendants.
ORDER RE: DIRECTIONS TO PLAINTIFF
Defendant K.A. Thompson remains unserved, his summons having been returned as unexecuted. San Quentin authorities state that no one by that name has ever worked for that institution. (Docket No. 32.) Plaintiff now asserts that the defendant's name is Thompson K. (Docket Nos. 33 and 34.) This is not sufficient for the Marshal to effect service.
Plaintiff is directed to comply with the following. He must provide the defendant's last name so that the complaint can be served. In cases where the plaintiff proceeds in forma pauperis, the "officers of the court shall issue and serve all process." 28 U.S.C. § 1915(d). The Court must appoint the Marshal to effect service, see Fed. R. Civ. P. 4(c)(2), and the Marshal, upon order of the Court, must serve the summons and the complaint, see Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994). 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).
Here, plaintiff's complaint has been pending for over 120 days, and, consequently, absent a showing of "good cause," is subject to dismissal without prejudice as to the unserved defendant, Thompson. See Fed. R. Civ. P. 4(m). Because plaintiff has not provided sufficient information to allow the Marshal to locate and serve the above-referenced defendant, plaintiff must remedy the situation or face dismissal of his claims against him. See Walker, 14 F.3d at 1421-22 (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, plaintiff must either himself serve the unserved defendant with the summons and complaint, or provide the Court with the complete name and current location of the defendant so that the Marshal is able to serve such defendant. If plaintiff fails to effectuate service, or to provide the Court with an accurate current location or other information for such defendant, on or before November 25, 2015, plaintiff's claims against the unserved defendant will be dismissed without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.
IT IS SO ORDERED. DATED: October 20, 2015
/s/_________
RICHARD SEEBORG
United States District Judge