Silverman v. Napa State Hospital ( 2020 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 JACOB S. SILVERMAN, 9 Case No. 18-07620-BLF(PR) Plaintiff, 10 ORDER DIRECTING PLAINTIFF v. TO PROVIDE COURT MORE 11 INFORMATION FOR DEFENDANT ERIN SHERMAN 12 NAPA STATE HOSPITAL, et. al, 13 Defendants. 14 15 Plaintiff, a California inmate at the time of filing1, filed a civil rights complaint 16 pursuant to 42 U.S.C. § 1983 against Napa State Hospital (“NSH”). Dkt. No. 1. On 17 November 6, 2019, Plaintiff filed an amended complaint, which is the operative complaint 18 in this matter. Dkt. No. 12. On March 30, 2020, the Court ordered service and directed 19 defendants to file a dispositive motion or notice regarding such motion. Dkt. No. 13. The 20 Clerk mailed Notices of Lawsuit and Requests for Waiver of Service of Summons to 21 Defendants Erin Sherman and Ken Maiseld at NSH. Dkt. Nos. 14 and 15. On May 14, 22 2020, the documents mailed to Defendants Erin Sherman and Ken Maiseld were returned 23 as undeliverable. Dkt. No. 16. After the documents were resent to NSH’s Litigation 24 Coordinator on June 22, 2020, Defendant Maisfeld filed a waiver of service on July 22, 25 2020. Dkt. No. 18. On July 23, 2020, Defendant Maiseld’s counsel, Deputy Attorney 26 General Wil Fong, filed a letter with the Court advising that Defendant Erin Sherman does 27 1 not work at NSH and that DSH-Napa is unable to locate any employee by that name. Dkt. 2 No. 19. Accordingly, Defendant Sherman has not been served. 3 Although a plaintiff who is incarcerated and proceeding in forma pauperis may rely 4 on service by the Marshal, such plaintiff “may not remain silent and do nothing to 5 effectuate such service”; rather, “[a]t a minimum, a plaintiff should request service upon 6 the appropriate defendant and attempt to remedy any apparent defects of which [he] has 7 knowledge.” Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987). Here, Plaintiff’s 8 complaint has been pending for over 90 days, and thus, absent a showing of “good cause,” 9 claims against Defendant Sherman are subject to dismissal without prejudice. See Fed. R. 10 Civ. P. 4(m). Plaintiff must remedy the situation by providing more information regarding 11 Defendant Sherman’s current whereabouts or face dismissal of his claims against this 12 Defendant without prejudice. See Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 13 1994) (holding prisoner failed to show cause why prison official should not be dismissed 14 under Rule 4(m) where prisoner failed to show he had provided Marshal with sufficient 15 information to effectuate service). 16 For the foregoing reasons, the Court orders Plaintiff to file a notice providing the 17 Court with more information regarding the current whereabouts for Defendant Erin 18 Sherman such that the Marshal is able to effect service. If Plaintiff fails to provide the 19 Court with the information requested within twenty-eight (28) days of the date this order 20 is filed, Plaintiff’s claims against Defendant Sherman shall be dismissed without prejudice 21 pursuant to Rule 4(m) of the Federal Rules of Civil Procedure without further notice to 22 Plaintiff. 23 IT IS SO ORDERED. 24 Dated: __August 21, 2020________ ________________________ BETH LABSON FREEMAN 25 United States District Judge 26