Silverman v. Napa State Hospital

Background

Jacob S. Silverman, who was incarcerated when he filed the case, brought a civil-rights action under 42 U.S.C. § 1983 against Napa State Hospital and others. His amended complaint was the operative complaint. The court had ordered service of the defendants, and the Clerk sent notices of the lawsuit and requests to waive service to Erin Sherman and Ken Maiseld at Napa State Hospital.

The documents for Sherman were returned as undeliverable. After the documents were resent to the hospital’s litigation coordinator, Maiseld waived service. Counsel for Maiseld then told the court that Sherman did not work at Napa State Hospital and that DSH-Napa could not locate an employee by that name. Sherman therefore had not been served.

Court’s Analysis

The court explained that an incarcerated plaintiff proceeding without paying filing fees may rely on service by the U.S. Marshal, but may not remain silent after learning about a problem with service. The court stated that Silverman’s complaint had been pending for more than 90 days. Under Federal Rule of Civil Procedure 4(m), and absent a showing of good cause, the claims against Sherman were subject to dismissal without prejudice.

Order

The court ordered Silverman to file a notice providing information about Sherman’s current whereabouts sufficient for the Marshal to serve her. The notice had to be filed within 28 days of the order. If Silverman failed to provide the requested information, the court stated that his claims against Sherman would be dismissed without prejudice under Rule 4(m) without further notice. Judge Beth Labson Freeman signed the order. The order did not dismiss the claims at that time.