1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 ANDRE KENNETH STUCKEY, 5 Case No. 19-cv-03780-YGR (PR) Plaintiff, 6 ORDER RELATING TO SERVICE v. ISSUES INVOLVING DEFENDANT DR. 7 M. BOSTANJIAN; DIRECTING SUE RISENHOOVER, et al., PLAINTIFF TO CLARIFY WHETHER HE 8 STILL WISHES TO VOLUNTARILY Defendants. DISMISS DEFENDANT BOSTANJIAN; 9 AND DENYING PLAINTIFF’S REQUEST FOR LEAVE TO FILE A SUR-REPLY 10 This Order addresses issues regarding service in the above-captioned action, and it also 11 addresses Plaintiff’s pending motion for leave to file a sur-reply. Dkt. 55. 12 Service has been ineffective on Defendant Dr. Maria Bostanjian. Initially, the Court had 13 been informed Defendant Bostanjian was not served because “Pelican Bay State Prison does not 14 have authorization to accept service for [these] individuals.” Dkt. 14. 15 As Plaintiff is proceeding in forma pauperis, he is responsible for providing the Court with 16 current addresses for all Defendants so that service can be accomplished. See Walker v. Sumner, 17

(9th Cir. 1994); Sellers v. United States,

(7th Cir. 1990). 18 While Plaintiff may rely on service by the United States Marshal, or in this case, the procedure for 19 requesting a defendant to waive the service requirement, “a plaintiff may not remain silent and do 20 nothing to effectuate such service.” Rochon v. Dawson,

(5th Cir. 1987). 21 When advised of a problem accomplishing service, a pro se litigation must “attempt to remedy 22 any apparent defects of which [he] has knowledge.”

Pursuant to Federal Rule of Civil 23 Procedure 4(m), if a complaint is not served within 90 days from the filing of the complaint, it 24 may be dismissed without prejudice for failure of service. Fed. R. Civ. P. 4(m) (providing that if 25 service of the summons and complaint is not made upon a defendant in 90 days after the filing of 26 the complaint, the action must be dismissed without prejudice as to that defendant absent a 27 showing of “good cause”); see also Walker,

(prisoner failed to show cause 1 why prison official should not dismissed under Rule 4(m) because prisoner did not prove that he 2 provided marshal with sufficient information to serve official). 3 In an Order dated March 9, 2020, the Court directed Plaintiff to provide the Court with a 4 current address for Defendant Bostanjian.1 Dkt. 15 at 1. The Court added that if Plaintiff “fails to 5 provide the Court with the current address of Defendant[] Bostanjian . . . within the twenty-eight- 6 day deadline, all claims against th[is] Defendant[] will be dismissed without prejudice under Rule 7 4(m).” Id. at 2. 8 On March 19, 2020, Plaintiff responded to the Court’s March 9, 2020 Order and provided 9 the address for Defendant Bostanjian as: California Correctional Health Care Services 10 (“CCHCS”), P.O. Box 588500, Elk Grove, California 95758. Dkt. 16 at 1. 11 On March 20, 2020, the Clerk of the Court mailed a Notice of Lawsuit and Request for 12 Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy of the 13 Complaint and all attachments thereto, and a copy of the January 21, 2020 order of service to 14 Defendant Bostanjian at the aforementioned CCHCS address. Dkts. 17, 18. To date, Defendant 15 Bostanjian has not yet been served. 16 On May 4, 2020, Plaintiff filed a document entitled, “Plaintiff’s Declaration in Support of 17 Plaintiff[’s] Request that the U.S. Marshal[] Serve Defendant Devinder Kumar.” Dkt. 22. In that 18 document, Plaintiff stated that he “would like to delete Defendant Maria Bostanjian from this 19 case.” Id. 20 The other served Defendants in this action have since filed a motion for summary 21 judgment. Dkt. 45. Plaintiff has filed an opposition, and Defendants have filed a reply. Dkts. 51, 22 53. 23 As mentioned, Plaintiff has filed a motion for leave to file a sur-reply. Dkt. 55. The Local 24 Rules do not permit the filing of a response to a reply, which is also called a sur-reply. See Civ. 25 L.R. 7-3(d). Plaintiff has not shown, nor is there any indication in the record, that a sur-reply is 26 either necessary or appropriate. Accordingly, Plaintiff’s request is DENIED. Dkt. 55. 27 1 On September 7, 2021, Clerk’s staff discovered that Defendant Bostanjian had another 2 address in the record, which is as follows: “Staff Psychiatrist, North Kern State Prison 3 [(“NKSP”)].” Dkt. 14. Therefore, the Clerk mailed another request for waiver of service, along 4 || with a copy of the Complaint and all attachments thereto, and a copy of the January 21, 2020 order 5 of service to Defendant Bostanjian at the aforementioned NKSP address. To date, the waiver has 6 not yet been returned and, thus, Defendant Bostanjian still has not been served. 7 Because service issues may still exist as to Defendant Bostanjian, the Court directs 8 Plaintiff to clarify whether he still wants to voluntarily dismiss this Defendant, and he shall do so 9 || using the manner explained below. 10 CONCLUSION 11 For the reasons outlined above, the Court orders as follows: 12 1. Plaintiff's motion for leave to file a sur-reply is DENIED. Dkt. 55. 5 13 2. No later than twenty-eight (28) days from the date of this Order, Plaintiff shall 14 send a motion to the Court clarifying whether he still wants to voluntarily dismiss Defendant 3 15 Bostanjian. Plaintiff must write the case number for this action -- Case No. C 19-3780 YGR (PR) 16 -- on the motion, and clearly label it as follows: “Motion to Voluntarily Dismiss Defendant Dr. 3 17 Maria Bostanjian.” If Plaintiff does not respond by filing a motion to voluntarily dismiss this 18 Defendant by the twenty-eight-day deadline, the Court will assume that Plaintiff still wishes to 19 || pursue his claims against Defendant Bostanjian. 20 3. The Court shall resolve the served Defendants’ pending motion for summary 21 || judgment in a separate written Order. 22 4. This Order terminates Docket No. 55. 23 IT IS SO ORDERED. 24 Dated: September 15, 2021 25 Lapene Hixg tfftees— JUBGE YVONNE GONZALEZ ROGERS 26 United States District Judge 27 28