Asberry v. Foss

Background

This order addressed service of process—the formal delivery of the lawsuit papers—on the only remaining defendant, identified in the caption as Salinas Valley State Prison Facility-D Male Dentist “G.” Service had been unsuccessful because the prison’s litigation coordinator informed the court that the prison needed the person’s name.

The opinion states that Tony Asberry was proceeding without paying the filing fee and was representing himself. In that situation, Asberry remained responsible for providing the court with the defendant’s full name and current address so that service could be completed. The court also stated that a plaintiff may use the United States Marshal or request a defendant’s waiver of service but may not remain inactive after learning of a service problem.

Order

The court gave Asberry 28 days from the date of the order to provide the full name of Salinas Valley State Prison Facility-D Male Dentist “G.” It suggested that he review Rules 26 through 37 of the Federal Rules of Civil Procedure for guidance about determining the defendant’s name.

The court stated that, if Asberry failed to provide the full name within the 28-day deadline, the complaint—in which only claims against this defendant remained—would be dismissed without prejudice under Federal Rule of Civil Procedure 4(m). The order did not decide the underlying claims. Judge Yvonne Gonzalez Rogers entered the order on May 5, 2021.