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Roberto A. Sotelo v. T. Birring

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


August 1, 2012

ROBERTO A. SOTELO, PLAINTIFF,
v.
T. BIRRING, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER REQUIRING PLAINTIFF TO EFFECT SERVICE ON DEFENDANT GREEN WITHIN SIXTY DAYS (Docs. 87 and 105)

Plaintiff Roberto A. Sotelo, a state prisoner proceeding in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on September 10, 2008. This action is proceeding on Plaintiff's second amended complaint, filed March 22, 2012, against Defendants Birring, Diep, Coleman, and Green for acting with deliberate indifference to Plaintiff's medical needs, in violation of the Eighth Amendment.

On April 4, 2012, the Court directed the United States Marshal to serve Defendant Green at his address of record with the California Department of Consumer Affairs, Physician Assistant Committee. 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). Defendant Green did not waive service and in attempting to effect personal service at the Missouri address, the Marshal was informed that Defendant Green was not at the residence, his location was unknown, and he was possibly working in Harrison, Arkansas. (Doc. 105.)

Given that Defendant Green holds an active physicians assistant license from the State of California, the Court expresses skepticism that a full and accurate disclosure was made to the Marshal on July 12, 2012. However, the Court and the Marshal can do no more at this juncture, as service on Defendant Green at his known, available address was unsuccessful, Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472, 115 S.Ct. 2293 (1995), and neither the Marshal nor the Court is authorized to undertake further investigation on Plaintiff's behalf, Tedder v. Odel, 890 F.2d 210, 211-12 (9th Cir. 1989).

The Court will grant Plaintiff sixty days within which to effect service on Defendant Green. Plaintiff's counsel shall contact Sujean Park, ADR and Pro Bono Program Director, at (916) 930-4278 or spark@caed.uscourts.gov to obtain preauthorization of any anticipated reasonable expenses which will be incurred in locating and serving Defendant Green, including but not limited to the services of a private investigator and/or process server. Should Defendant Green be located and served and should there be evidence submitted that he attempted to evade service of process, the Court will take appropriate action at that time.

Accordingly, Plaintiff is HEREBY ORDERED to effect service on Defendant Barry J. Green within sixty (60) days from the date of service of this order, and preauthorization of anticipated expenses shall be sought from Sujean Park. Fed. R. Civ. P. 4(m).

IT IS SO ORDERED.

20120801

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