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Francisco Uriarte v. Schwarzenegger

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


May 4, 2012

FRANCISCO URIARTE,
PLAINTIFF,
v.
SCHWARZENEGGER, ET AL,, DEFENDANT.

The opinion of the court was delivered by: Hon. William McCurine, Jr. U.S. Magistrate Judge United States District Court

ORDER DENYING PLAINTIFF'S MOTION TO COMPEL LOCATION OF DEFENDANT CRAWFORD (ECF No. 251)

I. Introduction

Plaintiff, proceeding pro se and in forma pauperis ("IFP") filed his complaint pursuant to 42 U.S.C. § 1983. Plaintiff requests an order compelling Defendants to find Defendant Crawford's present address or location so that the U.S. Marshal can serve Defendant Crawford with a copy of the summons and complaint. For the reasons discussed below, Plaintiff's Motion to Compel the Location of Defendant Crawford is DENIED.

II. Background

On August 2, 2006, Plaintiff filed his Complaint. (ECF No. 1.) On February 7, 2007, the Court granted IFP status and directed the U.S. Marshal to effect service on Defendants. (ECF No. 8.) Service on Defendants Crawford, Bracamonte, and Macias was returned un-executed on March 27, 2007. (ECF Nos. 15, 16, 17.)

In May 2007, the majority of the Defendants waived service, but Defendants Crawford, Bracamonte, and Macias did not. On April 25, 2007, Plaintiff filed a motion to compel the location of the unserved defendants including Crawford, Bracamonte, and Macias. (ECF No. 23.) On March 10, 2008, the Court denied without prejudice Plaintiff's motion to compel the locations of Defendants pending resolution of Defendants' motion to dismiss. (ECF Nos. 47, 62.)

On January 4, 2011, Plaintiff filed a second motion to compel the location of Defendants Crawford, Macias, and Bracamonte. (ECF No. 179.) Plaintiff specifically requested an order compelling the Defendants or the California Department of Corrections and Rehabilitation ("CDCR") to reveal the last known location of the Defendants. On September 21, 2011, the Court found good cause to grant Plaintiff's motion. (ECF No. 199.) The Court ordered the Deputy Attorney General assigned to this case to provide the forwarding address for Defendants Crawford, Macias, and Bracamonte to the U.S. Marshal in a confidential memorandum indicating that the summons and complaint is to be delivered to that address. (ECF No. 199.)

The U.S. Marshal successfully served Defendants Macias and Bracamonte but was unable to serve Defendant Crawford at the forwarding address. (See ECF Nos. 207, 208, 209.) The un-executed summons indicated the U.S. Marshal attempted service twice. On the second attempt the new homeowner indicated that Defendant Crawford no longer lived at the address. (ECF No. 208.)

III. Plaintiff's Argument

Plaintiff contends it is necessary to locate Crawford because Crawford is the last unserved Defendant. (ECF No. 251 at 4.) Plaintiff argues the Court should compel Defendants to locate Crawford because he is incarcerated and does not have the means to locate Crawford. (ECF No. 251 at 9.) Plaintiff also argues serving Crawford would be beneficial to all the parties in this action because Plaintiff and Defendants have agreed to commence settlement discussions. (ECF No. 251 at 4.) Finally, Plaintiff contends it would waste judicial resources to exclude Crawford from the settlement discussions. (ECF No. 251 at 4.) Defendants did not file an opposition to Plaintiff's motion.

IV. Applicable Law

"[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the summons and complaint, and having provided the necessary information to help effectuate service, plaintiff should not be penalized by having his or her action dismissed for failure to effectuate service." Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). So long as the prisoner has furnished the information necessary to identify the defendant, the marshal's failure to effect service of process is automatically good cause within the meaning of Rule 4(m). See Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994). Thus,as long as the privacy of the defendants forwarding addresses can be preserved, a plaintiff should be entitled to rely on the U.S. Marshal to effect service upon those defendants on his behalf. See Puett, 912 F.2d at 275.

However, a "plaintiff may not remain silent and do nothing to effectuate such service. At a minimum, a plaintiff should request service upon the appropriate defendant and attempt to remedy any apparent service defects of which a plaintiff has knowledge." Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987).

V. Analysis

Here, as noted above, the U.S. Marshal has attempted to serve Defendant Crawford two different times. (See ECF Nos. 17, 208.) On September 21, 2011, the Court ordered the Deputy Attorney General assigned to the case to provide the forwarding address for Defendant Crawford to the U.S. Marshal in a confidential memorandum instructing the U.S. Marshal to serve the summons and complaint at that address. (ECF No. 199.) The Deputy Attorney General complied with the order and the U.S. Marshall attempted service. However, Defendant Crawford is no longer located at the forwarding address. (See ECF No. 208.) There is no indication the failure to effect service was due to the U.S. Marshal's failure to perform his or her duties. It is Plaintiff's responsibility to provide the U.S. Marshal with sufficient information to locate and serve Defendant Crawford. Plaintiff has failed to cite any authority to support his claim that the U.S. Marshal, Attorney General, or CDCR is obligated to locate and serve Defendant Crawford on Plaintiff's behalf. Accordingly, Plaintiff's motion to compel the location of Defendant Crawford is DENIED.

Consequently, Plaintiff's complaint has been pending for over 120 days and absent a showing of "good cause," is subject to dismissal without prejudice as to Defendant Crawford. See Fed. R. Civ. P. 4(m).*fn1 Therefore, Plaintiff must remedy the situation or face dismissal of his claims against Defendant Crawford.

IT IS SO ORDERED.


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