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Shepard v. Cohen

United States District Court, E.D. California

July 9, 2015

LAMONT SHEPARD, Plaintiff,
v.
COHEN, et al., Defendants.

ORDER DIRECTING UNITED STATES MARSHAL TO INITIATE RE-SERVICE ON DEFENDANT COHEN USING ASSISTANCE OF LEGAL AFFAIRS DIVISION OF CDCR, AS INSTRUCTED BY THIS ORDER

GARY S. AUSTIN, Magistrate Judge.

I. RELEVANT PROCEDURAL HISTORY

Lamont Shepard ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on March 30, 2011. (Doc. 1.) This action now proceeds on the Second Amended Complaint filed on May 19, 2014, against defendants Dr. Cohen, Sergeant J. Lopez, Correctional Officer (C/O) Z. Dean, C/O J. Campbell, and Vera Brown (LVN) on Plaintiff's due process claim, and against defendants Dr. Cohen, Sergeant J. Lopez, C/O Z. Dean, and C/O J. Campbell on Plaintiff's excessive force claim. (Doc. 41.)

On August 22, 2014, the court issued an order directing the United States Marshal ("Marshal") to serve process upon defendants Brown and Cohen. (Doc. 54.) The address provided by Plaintiff for defendant Cohen was "C.S.P. Corcoran, P.O. Box 8800, Corcoran, California 93212." (Doc. 78.) In the Court's order, the Marshal was directed to:

Personally serve process and a copy of this order upon the defendant pursuant to Rule 4 of the Federal Rules of Civil Procedure and 28 U.S.C. § 566(c), and shall command all necessary assistance from the California Department of Corrections and Rehabilitation (CDCR) to execute this order. The Marshals Service shall maintain the confidentiality of all information provided by CDCR pursuant to this order. In executing this order, the Marshals Service shall contact the Legal Affairs Division of CDCR and request the assistance of a Special Investigator if the Litigation Officer at the institution is unable to assist in identifying and/or locating defendants.

(Doc. 54 at 2 ¶4.) On May 26, 2015, the Marshal filed a return of service unexecuted as to defendant Cohen, indicating that the Marshal was unable to locate defendant Cohen for service of process. (Doc. 78.)

On May 29, 2015, the Court issued an order to show cause, requiring Plaintiff to show cause, within thirty days, why defendant Cohen should not be dismissed from this action for Plaintiff's failure to provide sufficient information for the Marshal to serve process. (Doc. 80.) On June 12, 2015, Plaintiff filed a response to the Court's order. (Doc. 82.)

Plaintiff asserts that he does not know any address for defendant Dr. Cohen except for Dr. Cohen's work address, which he provided to the Marshal. However, Plaintiff contends that the CDCR has defendant Cohen's last known address, due to Cohen's employment by the CDCR. Plaintiff requests assistance by the Court to obtain such information from the CDCR.

II. DISCUSSION

The return of service filed by the Marshal on May 26, 2015, indicates that on September 26, 2014, the Marshal mailed service documents to defendant Cohen at Corcoran State Prison ("CSP"), at the address provided by Plaintiff. (Doc. 78.) There is no indication on the return of service that the Marshal received any response to the mail service. (Id.) The Marshal certified that he or she was unable to locate defendant Cohen, and made a notation, "5/26/15 Return Unexecuted, Unable to Locate." (Id.) There is no indication that the Marshal contacted the Legal Affairs Division of CDCR and requested the assistance of a Special Investigator in locating defendant Cohen.

Based on the information set forth in the USM-285 form, the Court cannot make a finding that Plaintiff has not provided sufficient information to locate this defendant. Therefore, the Marshal shall be directed to initiate re-service by contacting the Legal Affairs Division of the CDCR for assistance in locating and effecting service on defendant Dr. Cohen.

III. CONCLUSION

Accordingly, pursuant to Federal Rule of Civil Procedure 4(c), it is HEREBY ORDERED that:

1. The Clerk of the Court is directed to forward the following documents to the United ...

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