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Crayton v. Ramey, 18-01450 BLF (PR). (2018)

Court: District Court, N.D. California Number: infdco20181024j34 Visitors: 9
Filed: Oct. 19, 2018
Latest Update: Oct. 19, 2018
Summary: ORDER DIRECTING PLAINTIFF TO PROVIDE COURT MORE INFORMATION FOR DEFENDANT AFNAN BETH LABSON FREEMAN , District Judge . Plaintiff, a California inmate, filed a civil rights complaint pursuant to 42 U.S.C. 1983 against prison staff at Salinas Valley State Prison ("SVSP"). On August 6, 2018, the Court granted Plaintiff's motion for leave to proceed in forma pauperis ("IFP"), partially dismissed the complaint, and issued an order of service on Plaintiff's cognizable claims under the First A
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ORDER DIRECTING PLAINTIFF TO PROVIDE COURT MORE INFORMATION FOR DEFENDANT AFNAN

Plaintiff, a California inmate, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 against prison staff at Salinas Valley State Prison ("SVSP"). On August 6, 2018, the Court granted Plaintiff's motion for leave to proceed in forma pauperis ("IFP"), partially dismissed the complaint, and issued an order of service on Plaintiff's cognizable claims under the First Amendment and Eighth Amendment. (Docket No. 11.) On August 13, 2018, the Clerk mailed Notices of Lawsuit and Request for Waiver of Service of Summons and Waivers of Service of Summons to Defendants Sgt. G. Ramey, Correctional Officer Holmes, Capt. P. Sullivan, and Nurse Afnan at SVSP. (Docket Nos. 13, 14, 15, and 16). On August 17, 2018, the documents mailed to Defendant Nurse Afnan were returned unexecuted. (Docket No. 17.) To date, Defendant Afnan remains unserved.1

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 90 days, and thus, absent a showing of "good cause," claims against Defendant Afnan are subject to dismissal without prejudice. See Fed. R. Civ. P. 4(m). Plaintiff must remedy the situation by providing more information regarding Defendant Afnan's 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 Afnan such that the Marshal is able to 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 Afnan shall be dismissed without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.

IT IS SO ORDERED.

FootNotes


1. Defendants Sgt. G. Ramey, Correctional Officer Holmes, and Capt. P. Sullivan each returned an executed Waiver of Service. (Docket Nos. 18, 19, and 20).
Source:  Leagle

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