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Larry Rosser v. Mendez; and

January 24, 2011

LARRY ROSSER,
PLAINTIFF,
v.
MENDEZ; AND H. SANCHEZ, ET AL.,



The opinion of the court was delivered by: U.S. Magistrate Judge Hon. William V. Gallo

ORDER:

(1) GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR ASSISTANCE IN SERVING COMPLAINT AND SUMMONS UPON DEFENDANT MENDEZ; AND

(2) GRANTING AN EXTENSION OF TIME TO SERVE DEFENDANTS H. SANCHEZ AND MENDEZ PURSUANT TO FED.R.CIV.P. 4(m)

[Doc. No. 43]

On May 12, 2010, Larry Rosser ("Plaintiff'), a state prisoner currently incarcerated at the High Desert State Prison in Susanville, California, and proceeding pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. On July 14, 2010, the Court found that the claims in Plaintiff's Complaint were sufficient to survive the initial screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and directed the United States Marshal Service ("USMS") to effect service on Plaintiff's behalf pursuant to 28 U.S.C. § 1915(d) and FED.R.CIV.P. 4(c)(3).

On the following day, the Clerk issued a summons and prepared an "IFP package," including certified copies of Plaintiff's Complaint, a U.S. Marshal Form 285 ("USMS Form 285") for each Defendant named in the Complaint, and a copy of the Court's Order granting Plaintiff leave to proceed IFP. See Puett v. Blandford, 895 F.2d 630, 634 (9th Cir. 1990) ("An incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of summons and complaint."); 28 U.S.C. § 1915(d); FED.R.CIV.P. 4(a), (c)(3).

The Summons to Defendant Mendez was returned unexecuted. According to the USMS, it was informed by the litigation coordinator at Donovan State Prison that Defendant Mendez was not employed at that institution. Therefore, Plaintiff now moves the Court for the California Department of Corrections to provide him with Defendant Mendez's current address. The California Department of Corrections has refused to give Plaintiff Defendant Mendez's current address.

On November 1, 2010, the Court granted in part and denied in part Plaintiff's Motion For Court Order Directing California Department of Corrections to Supply Plaintiff with Defendant H. Sanchez's and Mendez's Current Address.

On November 8, 2010, the Nield Law Group filed an Ex Parte Motion to Extend Time to Respond to Plaintiff's First Amended Complaint. The Ex Parte Motion was filed on behalf of all the Defendants that had been served at that time.

On November 9, 2010, the Attorney General for the State of California informed the Court that it does not represent the California Department of Corrections nor any of the individual defendants in this case, but that the California Department of Corrections and the individual Defendants will be represented by private counsel.

On or about January 6, 2011, Plaintiff moved the Court for assistance in serving Defendant Mendez with the Complaint and Summons in this case.

I. FED.R.CIV.P. 4 Service Rules

Rule 4 of the Federal Rules of Civil Procedure provides that:

[i]f a defendant is not served within 120 days after the complaint is filed, the court -- on motion or on its own after notice to the plaintiff -- must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for ...


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