Revelez v. Allison

8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA RICHARD REVELEZ, 11 Case No. 22-cv-01738 BLF (PR) Plaintiff, 12 ORDER DIRECTING PLAINTIFF TO PROVIDE MORE v. 13 INFORMATION FOR UNSERVED DEFENDANTS; REQUESTING 14 LITIGATION COORDINATOR’S KATHLEEN ALLISON, et al., ASSISTANCE Defendants.

18 Plaintiff, a state inmate, filed the instant pro se civil rights action pursuant to 42 19 U.S.C. § 1983 against Kathleen Allison, the Secretary of the California Department of Corrections and Rehabilitation (“CDCR”), and “multiple doe defendants” at San Quentin State Prison (“SQSP”) where the underlying incident occurred. Dkt. No. 1 at 2. With information provided by Plaintiff, Dkt. No. 12, the Court ordered the matter served on newly identified defendants on February 27, 2023. Dkt. No. 15. On April 7, 2023, the CDCR returned the Report of E-Service Waiver, indicating that they could not identify “Sergeant D. Tomaso” and “Sergeant Whitney” based on the information provided in the court order. Dkt. No. 16. Accordingly, the Court ordered the Clerk to serve this matter again with updated information. Dkt. No. 17.

1 following with respect to Defendant Sgt. D’Tamaso: “SQ Personnel supervisor did a search for D’Tamaso and Tamaso. Unable to find any employee with those last names.”

3 Dkt. No. 19. The CDCR also reported the following with respect to Defendant Sgt.

4 Whitney: “SQ Personnel supervisor did not find anything for a staff member Sgt. Whitney.

5 She looked in our electronic records as well as pulled out old rosters from around that time and did to find anything.” Id. Accordingly, Defendants D’Tamaso and Whitney have not been served.

8 Although a plaintiff who is incarcerated and proceeding in forma pauperis 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). Here, Plaintiff’s complaint has been pending for over 90 days, and thus, absent a showing of “good cause,” claims against Defendants are subject to dismissal without prejudice. See Fed. R. Civ. P. 4(m). Plaintiff must remedy the situation by providing more information regarding Defendant D’Tamaso and Whitney’s identities and current whereabouts or face dismissal of his claims against Defendants 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).

21 For the foregoing reasons, the Court orders Plaintiff to file a notice providing the Court with more information regarding the current whereabouts for Defendants Sgt.

23 D’Tamaso and Sgt. Whitney or sufficient identifying information such that the Marshal is able to effect service. If Plaintiff fails to provide the Court with the information requested within twenty-eight (28) days of the date this order is filed, Plaintiff’s claims against Defendants shall be dismissed without prejudice pursuant to Rule 4(m) of the 1 In the interest of justice, the Court will also request SQSP’s Litigation Coordinator || to provide assistance in identifying these Defendants. The underlying incident, an assault that took place on March 16, 2018, is discussed in the Second Level of Review Response || to Appeal #SQ-A-19-00795, dated March 15, 2019, and signed by Warden Ron Davis, in || which Sgt. D’Tamaso’s name is mentioned. Dkt. No. | at 12. The Litigation Coordinator || is requested to file a response within fourteen (14) days from the date this order is filed.

7 The Clerk shall send a copy of this order to Plaintiff and serve a copy on the || Litigation Coordinator at SQSP.

9 IT IS SO ORDERED.

10 || Dated: __July 19, 2023 Loinfhacien BETH LABSON FREEMAN United States District Judge 2B Z 18 rder Directing Pl to Provide More Info 25 PROSE THC R _ 173 SRevelo, moreingo