Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. On October 25, 2010, plaintiff filed a request for an order permitting him to serve defendant Robinson by publication. Dckt. No. 56. The Federal Rules of Civil Procedure provide that a person from whom a waiver of service has not been obtained may be served by "following state law for serving a summons . . . in the state where the district court is located . . . ." Fed. R. Civ. P 4(e)(1). The California Code of Civil Procedure provides that "[a] summons may be served by publication if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in another manner . . . ." Cal. Code Civ. P. § 415.50(a). The court is not satisfied that defendant Robinson's address for service cannot be ascertained by means other than publication. Plaintiff's October 25, 2010 request for an order permitting service by publication is therefore denied.
Accordingly, plaintiff must provide new information about where defendant Robinson may be served with process. Plaintiff may seek such information through discovery, the California Public Records Act, California Government Code §§ 6250, et seq., or any other means available but must proceed with haste because Fed. R. Civ. P. 4(m) requires an action be dismissed as to a defendant not served within 120 days after filing the complaint unless the time is enlarged based upon a demonstration of good cause.
Accordingly, it is ORDERED that:
1. Plaintiff's October 25, 2010 request for an order permitting service by publication is denied.
2. The Clerk of the Court shall mail plaintiff one form USM-285.
3. Within 30 days from the date this order is served, plaintiff may submit the attached Notice of Submission of Documents with a completed form USM-285 providing instructions for service of process upon defendant Robinson.
4. Failure to provide new instructions for service of process upon defendant Robinson within the time allowed or show good cause for such failure will result in a recommendation that this action be dismissed as to that defendant.
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
No. CIV S-09-0763 FCD EFB P
ARMANDO ABREU, Plaintiff, x F. BRAGA, et al., Defendants.
NOTICE OF SUBMISSION OF DOCUMENTS
Plaintiff hereby submits the following documents in compliance with the court's order filed One completed forms USM-285