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Lewis v. Smith

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


September 16, 2010

DAVID K. LEWIS, PLAINTIFF,
v.
JAMES SMITH, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DENYING MOTION

(DOC. 24)

ORDER REQUIRING PLAINTIFF TO RESPOND TO JUNE 17, 2010 ORDER TO SHOW CAUSE WITHIN TWENTY DAYS

Plaintiff David K. Lewis ("Plaintiff") is a prisoner in the custody of the California Department of Correction and Rehabilitation. Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding against Defendants James Smith, Steven Yap, Yen Hui V. Li, and S. Nguyen for violation of the Eighth Amendment. On September 21, 2009, the United States Marshal returned the summons for Defendant S. Nguyen unexecuted. (Doc. 19.) The Court issued an order to show cause why Defendant S. Nguyen should not be dismissed for failure to provide sufficient information for the United States Marshal to effect service of process. (Doc. 20.) Pending before the Court is Plaintiff's motion, filed July 9, 2010, requesting that the Court order the Attorney General's office to supply Defendant S. Nguyen's address.

The summons was returned with an explanatory letter from litigation coordinator W. R. Adams, dated June 17, 2009. Defendant S. Nguyen is no longer employed at Kern Valley State Prison, where the events giving rise to this action occurred. The litigation coordinator also indicated that he had no contact information for Defendant Nguyen.

While it is true that the Attorney General has resources, it is Plaintiff's responsibility to provide sufficient information for the United States Marshal to effect service of process. Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 1994), abrogated in part on other grounds, Sandin v. Conner, 515 U.S. 472 (1995). Plaintiff clearly does not have Defendant's current address. Plaintiff may still be able to assist the United States Marshal by providing further information to effect service of process to assist the Marshal, such as full name, dates of employment, or other means of identification.

Accordingly, Plaintiff's motion requesting a court order, filed July 9, 2010, is DENIED. Plaintiff is to provide further information to assist the United States Marshal in effecting service of process within twenty days. Failure to respond or otherwise show cause will result in a recommendation of dismissal for Defendant Nguyen.

IT IS SO ORDERED.

20100916

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