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Smith v. Davis

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


August 3, 2008

MICHAEL LENOIR SMITH, PLAINTIFF,
v.
DAVIS AND GUS SGT. DAVIS, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER DENYING MOTION FOR ORDER DIRECTING RE-SERVICE ON DEFENDANTS (Doc. 24)

Plaintiff Michael Lenoir Smith ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The United States Marshal was ordered by the Court to initiate service of process by order filed June 11, 2008. (Doc. 16.) On June 26, 2008, the USM-285 forms were returned un-executed as to Defendants Davis and Gus. (Docs. 22, 23.) On June 30, 2008, Plaintiff filed a motion seeking re-service on Davis and Gus. (Doc. 24.)

Sergeant Davis subsequently filed a waiver of service of summons, and his response is due on or before August 15, 2008. (Doc. 28.) Therefore, Plaintiff's motion for initiation of re-service on Davis is moot and is denied.

Although Plaintiff entitled the motion as one seeking re-service on both Davis and Gus, the motion contains no information on Gus which would allow the Court to direct the Marshal to attempt re-service. Based on the information set forth by Plaintiff in the USM-285 form, Gus might be a nickname or a first name. Plaintiff is required to provide information sufficient to identify and locate the named defendants, and the submission of nothing more than a nickname is not sufficient. If and when Plaintiff obtains the identity of Gus, through discovery or other means, he may notify the Court and it will direct the Marshal to initiate re-service. If Plaintiff has not identified Gus by the close of discovery, he will be dismissed from this action.*fn1

Based on the foregoing, it is HEREBY ORDERED that Plaintiff's motion for an order directing re-service on Defendants Davis and Gus, filed June 30, 2008, is DENIED.

IT IS SO ORDERED.


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