August 22, 2013
KENNETH GIBBS, Plaintiff,
CARSON, et al, Defendant. No. CV13-00860 THE (PR)
ORDER DIRECTING PLAINTIFF TO PROVIDE CURRENT ADDRESS NECESSARY TO LOCATE DEFENDANTS DR. MALO-CLINES, DR. CRINKLAW, MS. TUSMAN AND LT. ANTHONY
THELTON E. HENDERSON, District Judge.
Plaintiff Kenneth Gibbs, a state prisoner at Pelican Bay State Prison (PBSP), filed the present pro se prisoner complaint under 42 U.S.C. § 1983. On May 16, 2013, the Court issued an "Order Serving Cognizable Claims, " ordering service on eleven Defendants, including Defendants Ms. Tubman, Dental Assistant, Drs. Malo-Clines and Crinklaw and Lt. Anthony. On July 17, 2013, the United States Marshal informed the Court that it could not serve these Defendants. The process receipt and returns filed by the United States Marshal indicate that the PBSP Litigation Coordinator said that: (1) Dr. Malo-Clines is "no longer at PBSP;" (2) Dr. >Crinklaw "was a contractor and is no longer at PBSP;" (3) Lt. Anthony "was retired;" and (4) there was insufficient information to identify Ms. Tubman, Dental Assistant. See Doc. ## 22-25.
Although a plaintiff who is incarcerated and proceeding in forma pauperis (IFP) may rely on service by the Marshal, such plaintiff "may not remain silent and do nothing to effectuate such service"; rather, "[a]t a minimum, a plaintiff should request service upon the appropriate defendant and attempt to remedy any apparent defects of which [he] has knowledge." Rochon v. Dawson , 828 F.2d 1107, 1110 (5th Cir. 1987).
Because Plaintiff has not provided sufficient information to allow the Marshal to locate and serve the above-named Defendants, Plaintiff must remedy the situation or face dismissal of his claims against them without prejudice. See Walker v. Sumner , 14 F.3d 1415, 1421-22 (9th Cir. 1994) (holding prisoner failed to show cause why prison official should not be dismissed under Rule 4(m) where prisoner failed to show he had provided Marshal with sufficient information to effectuate service). Pursuant to Fed.R.Civ.P. 4(m), if a complaint is not served within 120 days from the filing of the complaint, it may be dismissed without prejudice for failure of service. When advised of a problem accomplishing service, a pro se litigant proceeding IFP must "attempt to remedy any apparent defects of which [he] has knowledge." Rochon , 828 F.2d at 1110. Accordingly, Plaintiff must provide the Court with accurate and current addresses for the above-mentioned Defendants such that the Marshal is able to effect service.
In the interest of justice, the Court requests that the PBSP Litigation Coordinator provide more information about the employment status of Defendants Drs. Malo-Cline and Crinklaw. The request inquires whether Defendant Malo-Clines is currently an employee of the California Department of Corrections and Rehabilitation (CDCR). If he is still employed with CDCR, the Court requests that the PBSP Litigation Coordinator provide the current employment address for him. If he is no longer employed with CDCR, the Court requests that the PBSP Litigation Coordinator provide a forwarding address, or notice that such information is not available. The Court requests the same information regarding Dr. Crinklaw. And, although Lt. Anthony is no longer working for CDCR, the Court requests the forwarding address for him or notice that this information is not available.
In light of the foregoing, the Court orders as follows:
1. Plaintiff must provide the Court with accurate and current addresses for Defendants Drs. Malo-Cline and Crinklaw, Lt. Anthony and Ms. Tubman such that the Marshal is able to effect service. If Plaintiff fails to provide the Court with accurate and current addresses for these Defendants within thirty (30) days of the date this Order is filed, Plaintiff's claims against each Defendant will be dismissed without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.
2. In the interest of justice, the Clerk of the Court shall forward a copy of this order to the Litigation Coordinator at PBSP, who is requested to provide the above-requested information for Defendants Drs. Malo-Cline and Crinklaw and Lt. Anthony, or notice that such information is not available, within thirty (30) days from the date this Order is filed.
3. If the requested information is provided to the Court, service shall again be attempted. If service fails a second time, the claims against unserved Defendants shall be dismissed.
IT IS SO ORDERED.