Opinion
No. C 15-0192 MEJ (PR)
10-16-2015
JAVIER ADRIAN ENRIQUEZ, JR. Plaintiff, v. S. POSSON, et al., Defendants.
ORDER DIRECTING PLAINTIFF TO PROVIDE INFORMATION TO EFFECTUATE SERVICE
Plaintiff, an inmate at Salinas Valley State Prison ("SVSP") in Soledad, California filed an amended civil rights complaint under 42 U.S.C. § 1983 alleging that staff at SVSP have neglected to treat his hemorrhoid condition. On September 18, 2015, the Court found that, liberally construed, the amended complaint stated a cognizable Eighth Amendment claim for deliberate indifference to serious medical needs and ordered service upon three defendants at SVSP, including the defendant plaintiff identified as "Kendra-Medical Window Receptionist" (hereafter "defendant Kendra").
On September 29, 2015, summons for defendant Kendra was returned unexecuted with the following remark: "SVSP Litigation Coordinator said they cannot serve without a last name." Dkt. No. 18.
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 Kendra. Consequently, plaintiff must remedy the situation 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).
Accordingly, within thirty (30) days of the filing date of this order, plaintiff must provide the Court with sufficient information to locate defendant Kendra such that the Marshal is able to effectuate service. If plaintiff fails to do so, all claims against defendant Kendra will be dismissed without prejudice. If plaintiff does provide the requisite information, a second attempt at serving defendant Kendra will be made. If that attempt fails, all claims against defendant Kendra will be dismissed without prejudice.
The Clerk of the Court shall send this order to the SVSP Litigation Coordinator as well as to plaintiff.
IT IS SO ORDERED. DATED: October 16, 2015
/s/_________
Maria-Elena James
United States Magistrate Judge