Smith v. Fu

Opinion

I + 2 « 5 6 ! 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 JASON SMITH, 11 Case No. 19-02119 BLF (PR) Plaintiff, a 12 . ORDER DIRECTING PLAINTIFF v. TO PROVIDE MORE 13 INFORMATION FOR UNSERVED DEFENDANTS 14 DR. LAW FU, et al.,

15 Defendants. 16 . & 17 Plaintiff, a state prisoner at the Correctional Training Facility (“CTF”) in Soledad,

1 || filed the instant pro se civil rights action pursuant to 42 U.S.C. § 1983 against CTF 19 |} personnel. After an initial review, the Court found the complaint stated a cognizable claim 20 |) under the Eighth Amendment for deliberate indifference to serious medical needs. 21 || (Docket No. 4.) In the same order, Plaintiff was granted leave to attempt to file an 22 || amended complaint to state sufficient facts to state a First Amendment claim. (/d.) 23 || Plaintiff has filed notice that he wishes to proceed solely on the Eighth Amendment claim. 24 || (Docket No. 5.) 25 | On October 10, 2019, the Clerk mailed Notices of Lawsuit and Request for Waiver 26 || of Service of Summons and Waivers of Service of Summons to Defendants Dr. Law Fu, 27 || Dr. Rachel Ross, Dr. Kowall, M. Votaw, and S. Posson at CTF. (Docket Nos. 7-11.) 28 Order Directing Plaintiff to Provide More Information for Unserved Defendants PRO-SE\BLF\CR.19\2119Smith_moreinfo

1 On October 23, 2019, the documents mailed to Defendants Dr. Fu, Dr. Kowall and 2 || Dr. Ross were returned unexecuted. (Docket Nos. 13; 14.) The mail to Defendant Dr. 3 || Ross specifically indicates that she is “no longer with CTF.” (Docket No. 14.) 4 || Although a plaintiff who is incarcerated and proceeding in forma pauperis may rely on 5 || service by the Marshal, such plaintiff “may not remain silent and do nothing to effectuate 6 such service”; rather, “[a]t a minimum, a plaintiff should request service upon the 7 || appropriate defendant and attempt to remedy any apparent defects of which [he] has g || knowledge.” Rochon v. Dawson, 828 F.2d 1107, 1110 (Sth Cir. 1987). Here, Plaintiff's 9 || complaint has been pending for over 90 days, and thus, absent a showing of “good cause,” 10 || claims against Defendants Dr. Ross and Dr. Kowall are subject to dismissal without 11 || prejudice. See Fed. R. Civ. P. 4(m). Plaintiff must remedy the situation by providing more (12 information regarding Defendants Dr. Ross and Dr. Kowall’s current whereabouts or face E 13 || dismissal of his claims against these Defendants without prejudice. See Walker v. Sumner, 5 14 || 14 F.3d 1415, 1421-22 (9th Cir. 1994) (holding prisoner failed to show cause why prison 3 15 || official should not be dismissed under Rule 4(m) where prisoner failed to show he had a 16 || provided Marshal with sufficient information to effectuate service). . 5 17 For the foregoing reasons, the Court orders Plaintiff to file a notice providing the 18 || Court with more information regarding the current whereabouts for Defendants Dr. Ross 19 || and Dr. Kowall such that the Marshal is able to effect service. If Plaintiff fails to provide 20 || the Court with the information requested within twenty-eight (28) days of the date this 21 || order is filed, Plaintiffs claim against Defendants Dr. Ross and Dr. Kowall shall be 22 || dismissed without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. 23 IT IS SO ORDERED. Dated We Y ik DP! Gq BETH LABSON FREEMAN 25 United States District Judge 26 27 || Order Directing Plaintiff to Provide More Information for Defendants PRO-SE\BLF\CR.19\2119Smith_moreinfo ;