Ruben Odell Boulware v. Green Wall Gang, Et Al.
Filing
52
ORDER, signed by District Judge Roslyn O. Silver on 5/7/10: Plaintiff's Application for Entry of Default as to Defendants Trujillo and S.S. Cox 48 IS DENIED.(Hellings, J)
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. Ervin Jr., et al., Defendants. Rouben Odell Boulware, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) No. CV-05-1565-ROS (PC) ORDER IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
Plaintiff filed an Application for Entry of Default as to Defendants Trujillo and S.S. Cox. (Doc. 48). The summonses for Defendants Trujillo and Cox were returned unexecuted. (Docs. 29, 35, 37). As Trujillo and Cox have not yet been served, the request for entry of default will be denied. Trujillo was located and the Court has ordered the United States Marshal to effect personal service on him. (Doc. 50). The Marshal indicated that personal service was attempted on Cox, but that Cox was unable to be located. (Doc. 37). Although the Marshal was ordered to effect service for Plaintiff, "it is ultimately [P]laintiff's responsibility to provide a name and address for each defendant to be served in order for the Court to direct the Marshal to serve process on a defendant." Lateef v. Jackson, 2009 WL 393857, *2 (N.D. Cal. 2009); see also Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994), overruled on other grounds by Sandin v. Conner, 515 U.S. 472 (1995), (requiring a pro se prisoner plaintiff to have "furnished the information necessary to identify the defendant") (internal citation omitted).
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Having pursued and exhausted the information provided by Plaintiff, neither the Marshal nor the Court is permitted to offer further assistance in determining the whereabouts of Cox. See e.g. DeRoche v. Funkhouser, 2008 WL 4277659, *1 (D. Ariz. 2008) ("[N[either the Marshal Service nor the Court may engage in investigatory efforts on behalf of the parties to a lawsuit as this would improperly place the Court in the role of an advocate." (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991)). Plaintiff now has two choices; he may provide additional information with which the Marshal may attempt to identify and serve Cox or wait until the proceedings enter the discovery stage, assuming that stage is reached, and subpoena third parties for information concerning Cox's whereabouts. As Defendant Cox has not been served, entry of default will be denied. Accordingly, IT IS ORDERED Plaintiff's Application for Entry of Default as to Defendants Trujillo and S.S. Cox IS DENIED. DATED this 7th day of May, 2010.
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