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Norwood v. Woodford

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


December 26, 2007

GREGORY LYNN NORWOOD, PLAINTIFF,
v.
JEANNE WOODFORD, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Jan M. Adler U.S. Magistrate Judge

ORDER GRANTING PLAINTIFF'S MOTION THAT THE COURT ORDER SERVICE UPON DEFENDANTS [Doc. Nos. 30, 39]

On December 20, 2007 nunc pro tunc December 13, 2007, Plaintiff filed a "Second Motion Requesting that the Court Order Service Upon Defendants."*fn1 Doc. No. 39. Plaintiff, proceeding pro se and in forma pauperis, requests that the Court order service upon Defendants Bourland and Torres, who have apparently retired and separated from state service, respectively, via the California Department of Corrections and Rehabilitation.

"[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the summons and complaint, and, having provided the necessary information to help effectuate service, plaintiff should not be penalized by having his or her action dismissed for failure to effectuate service." Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). So long as the prisoner has furnished the information necessary to identify the defendant, the marshal's failure to effect service of process is automatically good cause within the meaning of Fed. R. Civ. P. 4(m). See Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994), overruled on other grounds by Sandin v. Conner, 515 U.S. 472, 483-85 (1995).*fn2 Here, Plaintiff has sufficiently identified Defendant Bourland as the former Chief Deputy Warden of Calipatria State Prison who responded to his Inmate/Parolee Appeal Form 602 complaints, and Defendant Torres as a Correctional Sergeant at Calipatria. Thus, as long as the privacy of Defendants' forwarding addresses can be preserved, Plaintiff is entitled to rely on the U.S. Marshal to effect service upon them on his behalf. See Puett, 912 F.2d at Accordingly, the Court GRANTS Plaintiff's motion and ORDERS the Deputy Attorney General assigned to this case to provide the forwarding addresses for Defendants Bourland and Torres to the U.S. Marshal in a confidential memorandum indicating that the summons and complaint is to be delivered to the specified address for each defendant. The Deputy Attorney General shall provide the U.S. Marshal with any such information on or before January 11, 2008.

Within forty-five (45) days of receipt of any available address from the Deputy Attorney General, the Court ORDERS the U.S. Marshal to serve a copy of Plaintiff's First Amended Complaint and summons upon Defendants Bourland and Torres. All costs of service shall be advanced by the United States pursuant to the Court's May 1, 2007 Order directing service pursuant to 28 U.S.C. § 1915(d) and Fed. R. Civ. P. 4(c)(2) [Doc. No. 13].

IT IS FURTHER ORDERED that the Clerk of the Court provide a copy of: (1) the Court's May 13, 2007 Service Order [Doc. No. 13]; (2) this Order; (3) the First Amended Complaint, summons and a blank U.S. Marshal Form 285 to the Deputy Attorney General for purposes of re-attempting service as to Defendants Bourland and Torres. However, both the Deputy Attorney General and the Office of the U.S. Marshal are ORDERED to keep the addresses provided for Bourland and Torres strictly confidential. Thus, the addresses shall not appear on any U.S. Marshal Form 285, shall be provided to Plaintiff, and shall not be made part of the Court's record.

Finally, if the Deputy Attorney General is not able to locate an address for either Defendant Bourland or Torres, he or she shall file a Declaration with the Court to that effect by no later than January 11, 2008.

IT IS SO ORDERED.


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