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Pearson v. Duke

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


February 24, 2010

WALTER L. PEARSON, PLAINTIFF,
v.
DUKE, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER

Plaintiff Walter L. Pearson ("Plaintiff") is proceeding pro se and in forma pauperis in this civil rights action. The Court has received unexecuted summonses with respect to the two defendants in this action, Jones and Smith. The unexcuted summonses indicated that both Jones and Smith are no longer employed at CSP-Corcoran.

It is unclear from the unexecuted summons whether the California Department of Corrections and Rehabilitation ("CDCR") has information regarding Defendant Jones' or Defendant Smith's current residence. Accordingly, the Court will direct that the clerk forward a copy of this order to the legal affairs division of CDCR. The Court requests that CDCR provide any information they have regarding a "MTA Jones" and "MTA Smith" that worked at CSP-Corcoran on or around September 2000. Specifically, the Court requests the current or last known addresses for Jones' and Smith's dwelling or usual place of abode, or, if Jones and/or Smith are still employed by CDCR, an address for the institution where they are currently employed and can be served. Given the sensitive nature of the information being requested, Defendant Jones' and Defendant Smith's home addresses should be forwarded to the Court under seal. If any address is provided, the Court will order the U.S. Marshall to re-attempt service at that address. If an address is not provided, the Court requests that CDCR furnish detailed information explaining why it is unable to provide a current address for Defendants Jones and Smith.

If CDCR is unable to provide this information, and Plaintiff is unable to provide the Court with any update information on Jones or Smith's whereabouts, this action will be dismissed pursuant to Federal Rule of Civil Procedure 4(m). See Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 1994) overruled on other grounds by Sandin v. Connor, 515 U.S. 472 (1995) (failure to provide sufficient information to facilitate U.S. Marshal's service of the complaint and summons on defendant may result in dismissal).

Accordingly, it is HEREBY ORDERED that:

1. The clerk is directed to forward a copy of this order to the legal affairs division of the California Department of Corrections and Rehabilitation;

2. The California Department of Corrections and Rehabilitation shall furnish to the Court either:

a. Current or last known information for Defendant Jones' and Defendant Smith's dwelling or usual place of abode, or an address where they may be served pursuant to Federal Rule of Civil Procedure 4. Such information shall be forwarded to the Court under seal; or

b. If CDCR is unable or unwilling to provide such information, detailed information explaining why CDCR is unable or unwilling to provide such information;

IT IS SO ORDERED.

20100224

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