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Farha v. Silva

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


February 22, 2010

MAUWAI FARHA, PLAINTIFF,
v.
B. SILVA, ET AL., DEFENDANTS.

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

ORDER RE MOTION (DOC 53) AND REQUIRING PLAINTIFF TO FURNISH MORE INFORMATION FOR SERVICE OF PROCESS

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is Plaintiff's motion titled as a motion to direct the U.S. Marshal to serve defendants with his proof of service. Plaintiff contends that defendants have been properly served with the first amended complaint.

Plaintiff attaches as an exhibit to his motion a copy of the answer filed by Defendants Banks, Riddle, Wimbly, Pierce and Williams, filed on September 11, 2009. In the answer, Defendants note that Defendants Silva and Swain have not yet been served. On November 9, 2009, Defendant Silva filed an answer to the complaint.

On October 26, 2009, the USM 285 form for service upon Defendant Swain was returned as unexecuted. The form indicates that the CDC locator is unable to locate Defendant Swain, because there re "too many in database." The Marshal cannot locate and serve unidentified defendants. In order to effect service upon Defendant Swain, the U.S. Marshal needs more identifying information.

Within thirty days from the date of service of this order, plaintiff shall provide the court with further information to assist the Marshal in serving Defendant Swain. If plaintiff can remember any other details that might assist the court and the Marshal, plaintiff shall so inform the court. For example, where was Defendant Swain assigned? Is Plaintiff aware of the first letter of Swain's first name? Does plaintiff remember anything that might help identify Defendant Swain.

As to Defendant Silva, Plaintiff's motion will be denied as moot, as Silva has appeared in this action by answer filed on October 26, 2009. As to Defendant Swain, the court denies Plaintiff's motion at this point in the litigation. Should Plaintiff provide further identifying information as to Defendant Swain, the court will direct service of process by the U.S. Marshal.

Based on the foregoing, it is HEREBY ORDERED that:

1. Within thirty days from the date of service of this order, plaintiff shall provide the court with any and all information he has that might help the Marshal identify and serve Defendant Swain.

2. Plaintiff's motion for service is denied.

IT IS SO ORDERED.

20100222

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