Holestine v. Covello

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 ERNEST KELLY HOLESTINE, Case No.: 3:20-cv-0159-LAB-JLB CDCR #J-01366, 11 ORDER GRANTING EXTENSION Plaintiff, 12 OF TIME TO SERVE DEFENDANT vs. MIGUEL GONZALEZ 13 14 PATRICK COVELLO, et al., 15 Defendants. 16 17 18 19 20 21 Ernest Kelly Holestine, currently incarcerated at Salinas Valley State Prison 22 (“SVSP”) in Soledad, California, and proceeding pro se, has filed a complaint against 23 several prison officials and another inmate, Miguel Gonzalez. The Court previously 24 directed the U.S. Marshal to serve a copy of the Complaint and summons upon each 25 Defendant. Dkt. 4. Holestine promptly completed the necessary forms and provided them 26 to the U.S. Marshal, who attempted to serve Gonzalez by mail at the California Health Care 27 Facility at Stockton, California. That attempt failed because, as the Marshal wrote, “per Lt. 28 1 Coordinator, cant acapt [sic] service.” Mot. Ex. C. There is no indication that the Marshal 2 made any further attempt, and Holestine only learned of the failed service after inquiring 3 into its status. Holestine seeks an extension of time to serve Gonzalez. 4 When a court orders the Marshal to serve a defendant, the Marshal must “[take] the 5 proper steps . . . to serve copies of the summons and complaint effectively.” Puett v. 6 Blandford, 912 F.2d 270, 276 (9th Cir. 1990). Holestine has diligently pursued service, but 7 the Marshal appears to have made no attempt at service after learning that mail service 8 wasn’t accepted. The Court finds good cause for the extension and GRANTS the Motion. 9 The Court ORDERS as follows: 10 1) Holestine’s time to serve Gonzalez with the Complaint and summons is extended 11 to November 15, 2020. 12 2) The U.S. Marshal must serve a copy of the Complaint and summons upon 13 Defendant Gonzalez as Holestine previously directed on the USM 285 Form. Due 14 to the previous failure of mail service, the Marshal must attempt personal service. 15 All costs of that service will be advanced by the United States. See 16 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). Service must be completed by 17 November 15, 2020. Should another service attempt fail, the Marshal is 18 ORDERED to attempt by another means or inform Holestine why another means 19 is not feasible. The Marshal is further ORDERED to promptly notify Holestine 20 of any failed attempts and/or of the completion of service. 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 27 1 The Court reads this language to indicate that an official at CHCF Stockton couldn’t 28 1 3) Plaintiff must, after the U.S. Marshal effects service, serve upon Gonzalez (or, if 2 counsel has appeared for Gonzalez, that counsel) a copy of every further 3 pleading, motion, or other document submitted for the Court’s consideration 4 pursuant to Fed. R. Civ. P. 5(b). 5 4) The Clerk must provide Plaintiff with a blank USM 295 Form. The Clerk must 6 also provide one certified copy each of: this Order; the Court’s April 8, 2020 7 Order in this matter, Dkt. 4; the Complaint; and the previously-issued summons. 8 Due to the passage of time and the possibility that Gonzalez’s address has 9 changed in the interim, Plaintiff must provide the U.S. Marshal with an updated 10 USM Form 285 for Gonzalez. 1] IT IS SO ORDERED. 12 13 Dated: September 23, 2020 (an / A. (4, 14 Hon. Larry Alan Burns 15 Chief United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 3 oe □□