Asberry v. Foss

Opinion

3 TONY ASBERRY, 4 Case No. 19-cv-06311-YGR (PR) Plaintiff, 5 NOTICE REGARDING INABILITY TO v. SERVE SOLE DEFENDANT SALINAS 6 VALLEY STATE PRISON FACILITY-D SALINAS VALLEY STATE PRISON MALE DENTIST “G” 7 FACILITY-D MALE DENTIST “G,”

8 Defendant.

9 This Order addresses issues regarding service in the above-captioned action. Service has 10 been ineffective on Defendant Salinas Valley State Prison (“SVSP”) Facility-D Male Dentist “G.” 11 The Court has been informed by SVSP Litigation Coordinator G. Lopez that the reason service 12 was ineffective was because SVSP “need[s] [the] name of the person who is being served.” Dkt. 13 26 at 1. 14 As Plaintiff is proceeding in forma pauperis, he is responsible for providing the Court with 15 the full names and current addresses for all Defendants so that service can be accomplished. See 16 Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994); Sellers v. United States, 902 F.2d 598, 603 17 (7th Cir. 1990). While Plaintiff may rely on service by the United States Marshal, or in this case, 18 the procedure for requesting a defendant to waive the service requirement, “a plaintiff may not 19 remain silent and do nothing to effectuate such service.” Rochon v. Dawson, 828 F.2d 1107, 1110 20 (5th Cir. 1987). When advised of a problem accomplishing service, a pro se litigation must 21 “attempt to remedy any apparent defects of which [he] has knowledge.” Id. Pursuant to Federal 22 Rule of Civil Procedure 4(m), if a complaint is not served within 90 days from the filing of the 23 complaint, it may be dismissed without prejudice for failure of service. Fed. R. Civ. P. 4(m) 24 (providing that if service of the summons and complaint is not made upon a defendant in 90 days 25 after the filing of the complaint, the action must be dismissed without prejudice as to that 26 defendant absent a showing of “good cause”); see also Walker, 14 F.3d at 1421-22 (prisoner failed 27 to show cause why prison official should not dismissed under Rule 4(m) because prisoner did not 1 No later than twenty-eight (28) days from the date of this Order, Plaintiff must provide 2 the Court with the full name of Defendant SVSP Facility-D Male Dentist “G.” Plaintiff should 3 review the federal discovery rules, Rules 26-37 of the Federal Rules of Civil Procedure, for 4 guidance about how to determine the full name of this Defendant. 5 If Plaintiff fails to provide the Court with the full name of Defendant SVSP Facility-D 6 Male Dentist “G” within the twenty-eight-day deadline, the complaint (in which only claims 7 against this Defendant remain) will be dismissed without prejudice under Rule 4(m). 9 Dated: May 5, 2021 J E YVONNE GON EZ ROGERS 10 ited States District Judge 11 12

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