Sambrano v. Opferbeck et al

Filing 10

ORDER that Plaintiffs 9 Application to Proceed In Forma Pauperis is construed as a "Response" to the Court's April 4, 2011 Show Cause Order, (doc. 6). The April 4, 2011 Show Cause Order, (doc. 6), is discharged based upon Plaintiff 's Response, (doc. 9). Counts VI and VII and Defendants Caruso, Kelly, Hernandez, Matthews, Estrada, Sampter, Nauyen, and Herd are dismissed without prejudice. Defendants Opferbeck, Moyer, Quillman, Casados, Lopez, Fortune, Smoke, Coffey, Simp son, Knippel, Dunnington, Feller, and Maricopa County Hospital Registered Nurse Rosemary must answer Counts I-V and VIII. The Clerk of Court must send Plaintiff a service packet including the Complaint (Doc. 1), this Order, and both summons and reque st for waiver forms for Defendants Opferbeck, Moyer, Quillman, Casados, Lopez, Fortune, Smoke, Coffey, Simpson, Knippel, Dunnington, Feller, and Maricopa County Hospital Registered Nurse Rosemary. Plaintiff must complete and return the service packet to the Clerk of Court within 21 days of the date of filing of this Order. This matter is referred to Magistrate Judge Lawrence O. Anderson for all pretrial proceedings. Signed by Judge G Murray Snow on 7/14/11. (DMT) ).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Anthony Sambrano,

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Plaintiff,

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vs.

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Sergeant Opferbeck, et al.,

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Defendants.

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No. CV 11-0119-PHX-GMS (LOA)
ORDER

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Arizona State Prison Complex-Kingman, filed a pro se civil rights Complaint pursuant to 42

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U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. (Doc. 1, 2.) On March 30,

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2011, Plaintiff filed a Notice of Change of Address that reflected Plaintiff had been released.

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(Doc. 5.) In an Order filed April 4, 2011, Plaintiff was given 30 days to either pay the $350.00

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filing fee or to show cause why he was unable to pay the fee within 120 days of his release.

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(Doc. 6.) On April 25, 2011, Plaintiff filed a letter in response to the April 4 Order. (Doc.

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7.) In his Letter, Plaintiff stated that he was “applying for leave to proceed in forma pauperis

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without prepayment of costs or fees or the nec[]es[s]ity of giving security therefore.”

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He also stated that he had “recently [been] released from the Arizona Department of

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Corrections” and that he was “unemployed.” (Id.) In an Order filed June 24, 2011, the Court

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found the Letter failed to comply with the Court’s April 4 Order. (Doc. 8.) The Court granted

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TERMPS REF

On January 18, 2011, Plaintiff Anthony Sambrano, who was then confined in the

Plaintiff another 30 days in which to either pay the $350.00 filing fee or to file a compliant

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(Id.)

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“Response” to the April 4 Order, including being made under penalty of perjury. See 28 U.S.C.

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§ 1746 (oath requirement may be satisfied when a person declares under penalty of perjury that

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the submission is true and correct and signs and dates the document).

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Plaintiff has filed an Application to Proceed In Forma Pauperis without prepayment

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of fees or costs, which he has signed under penalty of perjury. (Doc. 9.) The Court construes

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the Application as a “Response,” which establishes that Plaintiff is currently unable to pay the

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filing fee for this action.1

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will order Defendants Opferbeck, Moyer, Quillman, Casados, Lopez, Fortune, Smoke, Coffey,

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Simpson, Knippel, Dunnington, Feller, and Rosemary R.N. to answer Counts I, II, III, IV, V, and

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VIII of the Complaint and will dismiss the remaining claims and Defendants without prejudice.

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I.

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Accordingly, the Show Cause Order will be discharged.

The Court

Statutory Screening of Prisoner Complaints
The Court is required to screen complaints brought by prisoners seeking relief against

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a governmental entity or an officer or an employee of a governmental entity.2

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§ 1915A(a).

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claims that are legally frivolous or malicious, that fail to state a claim upon which relief may

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be granted, or that seek monetary relief from a defendant who is immune from such relief.

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U.S.C. § 1915A(b)(1), (2).

28 U.S.C.

The Court must dismiss a complaint or portion thereof if a plaintiff has raised

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A pleading must contain a “short and plain statement of the claim showing that the

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pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does not

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demand detailed factual allegations, “it demands more than an unadorned, the-defendant-

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unlawfully-harmed-me accusation.”

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

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TERMPS REF

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According to the website for the Arizona Department of Corrections, Plaintiff was
released on March 18, 2011. See http://www.azcorrections.gov/Inmate_DataSearch/
results_Minh.aspx?InmateNumber=133736&LastName=SAMBRANO&FNMI=A&Search
Type=SearchInet (Last visited July 13, 2011).
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Because Plaintiff was a “prisoner” within the meaning of the Prison Litigation Reform
Act (PLRA) when he filed this action and is proceeding in forma pauperis, his Complaint is
subject to screening by the Court.
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“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements, do not suffice.” Id.

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“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim

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to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.

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544, 570 (2007)).

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the court to draw the reasonable inference that the defendant is liable for the misconduct

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alleged.” Id.

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context- specific task that requires the reviewing court to draw on its judicial experience and

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common sense.”

A claim is plausible “when the plaintiff pleads factual content that allows

“Determining whether a complaint states a plausible claim for relief [is] . . . a

Id. at 1950.

Thus, although a plaintiff’s specific factual allegations may be

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consistent with a constitutional claim, a court must assess whether there are other “more likely

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explanations” for a defendant’s conduct. Id. at 1951.

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But as the United States Court of Appeals for the Ninth Circuit has instructed, courts

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must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th

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Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent standards

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than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94

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(2007) (per curiam)).

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II.

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Complaint
Plaintiff alleges eight counts for excessive use of force, denial of constitutionally

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Sergeant Opferbeck, Michael Moyer, Daniel Quillman, Albert Casados, Lourdes Lopez,

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Mercedes Fortune, James Smoke, and Ethan Coffey (collectively, police Defendants).

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sues the following Phoenix Fire Department firefighters or paramedics: Captain Robert R.

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Simpson, Jason E. Knippel, Corrine M. Dunnington, and Donna J. Feller (collectively, fire

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department Defendants).

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Hospital: Daniel M. Caruso, Dr. Erin Kelly, Marc R. Matthews, Elizabeth Estrada, M. Sampter

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(or Sumpter), Vu Nauyen (or Vu Nawyen), Licensed Practical Nurse (LPN) Reginald Herd,

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TERMPS REF

adequate medical care, and due process.

Plaintiff sues the following Phoenix Police Officers:

Registered Nurse (RN) Rosemary, and Frances Hernandez, M.A (collectively, hospital

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He also

He further sues the following employees of the Maricopa County

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Defendants). Plaintiff seeks injunctive, compensatory, and punitive relief.

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Plaintiff alleges the following facts in his Complaint: On the evening of January 25,

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2009, Plaintiff was surrounded by the police Defendants as he left a restaurant. They ordered

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Plaintiff to stop and get on the ground.

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ground and holding his hands behind his back. Plaintiff was ordered not to move and warned

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that the officers were pointing tasers at him.

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was preparing or attempting to cuff the other, he jerked Plaintiff’s arm and yelled at Plaintiff

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to stop resisting. (Doc. 1 at 3.)3 The surrounding officers began kicking Plaintiff and dropping

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down on one knee on Plaintiff’s spine, neck, and head.

Plaintiff complied with the orders by laying on the

“Officer John Doe” cuffed one wrist, but as he

The officers stopped after Plaintiff

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yelled they were killing him. Plaintiff’s other wrist was cuffed and he was raised to a seated

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position.

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chest felt heavy, he had difficulty breathing, and both eyes were swollen.4 (Id. at 4A.) Plaintiff

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asked the officers why they had attacked him, but they told him to shut-up and to not be a baby.

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Plaintiff pleaded for medical attention and was told that paramedics would be called.

Plaintiff was in a cold sweat, felt dizzy, felt “extreme pain” all over his body, his

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Fire department Defendants Simpson, Knippel, Dunnington, and Feller arrived but

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indicated that nothing was wrong with Plaintiff and told the police officers that Plaintiff was

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faking to avoid jail. Plaintiff asked Captain Simpson to have him taken to a hospital or given

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oxygen. Simpson said that Plaintiff had to first sign a consent to treatment.

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the form, which he was unable to read due to his swollen eyes, but rather than providing

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treatment or taking him to the hospital, the paramedics left.

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Plaintiff signed

Two police officers then dragged Plaintiff by his elbows, with his hands cuffed behind

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TERMPS REF

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Plaintiff submitted several pages that were not numbered. The Court refers to those
pages by their sequential order and an “A” to distinguish them from the numbered pages that
are part of the court-approved form complaint.
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As discussed below, Plaintiff was later found to have broken ribs and a collapsed lung
that required insertion of a chest tube.
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him, to a police cruiser and transported him to the jail.5

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the cruiser to be booked, but booking officers refused to do so due to Plaintiff’s injuries and

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said that Plaintiff needed to go to a hospital. The officers again dragged Plaintiff by the elbows

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back to the cruiser and eventually transported him to Maricopa County Hospital, where they

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again dragged him from the cruiser into the hospital.6

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The officers dragged Plaintiff from

In the hospital, the officers told hospital staff that “nothing” was wrong with Plaintiff

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and that he was faking.

Defendant Nurse Rosemary told Plaintiff to lay flat on the gurney,

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despite Plaintiff’s repeated protestations that he was unable to do so due to the pain and

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difficulty breathing and he asked her for asked for oxygen.

Rosemary repeatedly told Plaintiff

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to shut-up and stop acting like a baby because he was disturbing other patients. When Plaintiff

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continued to cry out, Rosemary moved to an isolated room with an officer; the officer also

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told Plaintiff to shut-up because he was starting to make the officer mad.

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Rosemary came in to taunt Plaintiff and call him names. After a shift change, Dr. Kelly came

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into the room and told Nurse Rosemary to start two IVs because Plaintiff was in shock and

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“fixin to die on you.” (Doc. 1 at 7.) Rosemary started the IVs. Dr. Kelly told Plaintiff she was

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going to give him something to knock him out so that she could insert a chest tube because his

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right lung had collapsed.

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Plaintiff was able to breathe.

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he remained for several days, and was heavily medicated by IV morphine and pills until the

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chest tube was removed.

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III.

Plaintiff also had broken ribs.

During the night,

After the tube had been inserted,

He was transported to the Lower Buckeye Jail infirmary, where

Failure to State a Claim

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To state a claim under § 1983, a plaintiff must allege facts supporting that (1) the

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conduct about which he complains was committed by a person acting under the color of state

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TERMPS REF

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Plaintiff contends that these officers repeatedly parked farther away than necessary
and then dragged Plaintiff back and forth into the jail and then the hospital.
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Plaintiff alleges that they took him to the wrong hospital at first because they did not
know the location of Maricopa County Hospital.
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law and (2) the conduct deprived him of a federal constitutional or statutory right.

Wood v.

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Ostrander, 879 F.2d 583, 587 (9th Cir. 1989). In addition, to state a valid constitutional claim,

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a plaintiff must allege that he suffered a specific injury as a result of the conduct of a particular

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defendant and he must allege an affirmative link between the injury and the conduct of that

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defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).

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Further, to state a claim against a defendant, “[a] plaintiff must allege facts, not simply

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conclusions, that show that an individual was personally involved in the deprivation of his civil

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rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). For an individual to be

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liable in his official capacity, a plaintiff must allege that the official acted as a result of a

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policy, practice, or custom. See Cortez v. County of Los Angeles, 294 F.3d 1186, 1188 (9th

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Cir. 2001).

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defendant’s position as the supervisor of someone who allegedly violated a plaintiff’s

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constitutional rights does not make him liable. Monell v. Dep’t of Soc. Servs., 436 U.S. 658,

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691 (1978); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

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individual capacity, “is only liable for constitutional violations of his subordinates if the

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supervisor participated in or directed the violations, or knew of the violations and failed to act

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to prevent them.” Taylor, 880 F.2d at 1045.

In addition, there is no respondeat superior liability under § 1983, so a

A supervisor in his

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A.

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Plaintiff sues hospital Defendants Caruso, Matthews, Estrada, Sampter, Nauyen, Herd,

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and Hernandez. Plaintiff fails to allege any facts to support that Defendants Caruso, Matthews,

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Estrada, Sampter, Nauyen, Herd, and Hernandez violated any constitutional right.

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he fails to state a claim against any of these Defendants and they will be dismissed.

Caruso, Matthews, Estrada, Sampter, Nauyen, Herd, & Hernandez

Therefore,

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B.

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Plaintiff designates Count I as a claim for excessive use of force and Count II as a claim

Excessive Force

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for violation of the cruel and unusual punishment clause of the Eighth Amendment.

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designates Count IV as a claim for violation of contemporary standards of decency based in

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TERMPS REF

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He

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part on the excessive use of force.7 The Court treats these counts, or portion thereof, as

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asserting a claim for excessive use of force against the police Defendants.

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A claim that police officers used excessive force in the course of an arrest arises under

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the Fourth Amendment, rather than the Eighth Amendment.

See Graham v. Connor. 490 U.S.

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386, 395 (1989); Hooper v. County of San Diego, 629 F.3d 1127, 1133 (9th Cir. 2011); Bryan

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v. MacPherson, 630 F.3d 805, 823-24 (9th Cir. 2010).

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plaintiff must allege facts to support that the force used by police officers was objectively

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unreasonable under the circumstances.

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whether the use of force was “objectively reasonable in light of the facts and circumstances

To state an excessive force claim, a

Graham, 490 U.S. at 395.

The pertinent question is

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confronting [the officers], without regard to their underlying intent or motivation.”

Id. at 397.

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An arrestee’s resistance may support the use of force even if officers lack probable cause for

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an arrest. Brooks v. City of Seattle, 599 F.3d 1018, 1022 (9th Cir. 2010). Nevertheless, the

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existence of probable cause may be considered as a part of the totality of the circumstances.

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Id.

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the suspect posed an immediate threat to the safety of officers or others, and whether the

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suspect was actively resisting arrest or attempting to evade arrest. Miller v. Clark County, 340

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F.3d 959, 964 (9th Cir. 2003); see Bryan, 2010 WL 4925422, at *14-17.

Other relevant circumstances include the severity of the suspected crime at issue, whether

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Plaintiff sufficiently states a claim against the named police Defendants for use of

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excessive force and these Defendants will be required to respond to Plaintiff’s excessive force

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allegations in the Complaint.

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officers who repeatedly dragged him by his elbows will be dismissed without prejudice for two

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reasons.

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Second, even if he had, Rule 10(a) of the Federal Rules of Civil Procedure requires the

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plaintiff to include the names of the parties in the action. As a practical matter, it is impossible

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in most instances for the United States Marshal or his designee to serve a summons and

However, Plaintiff’s allegations against the unnamed police

First, Plaintiff did not include any fictitiously-named John Does as Defendants.

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TERMPS REF

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Plaintiff otherwise asserts a violation in Count IV based on the denial of medical care.
This portion of Count IV is addressed below.
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complaint or amended complaint upon an anonymous defendant.

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that where identity is unknown prior to the filing of a complaint, a plaintiff should be given an

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opportunity through discovery to identify the unknown defendants, unless it is clear that

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discovery would not uncover the identities, or that the complaint would be dismissed on other

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grounds.

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Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)).

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the Doe officers whom he believes violated his constitutional rights and thereafter seek leave

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to amend his Complaint to name them.

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The Ninth Circuit has held

Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (citing Gillespie v.

C.

Plaintiff may attempt to learn the identities of

Medical Care

Plaintiff designates Counts III, IV (in part), V, and VIII as claims for denial of

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medical care, a plaintiff must allege facts to support that he has or had a serious medical need

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and that a particular defendant acted with deliberate indifference to that need. See Estelle v.

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Gamble, 429 U.S. 97, 104-05 (1976); Lolli v. County of Orange, 351 F.3d 410, 418-19 (9th

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Cir. 2003). To allege a serious medical need, a plaintiff must set forth facts to support that the

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“failure to treat a prisoner’s condition could result in further significant injury or the

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‘unnecessary and wanton infliction of pain.’” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.

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2006) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), overruled on other

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grounds by WMX Techs, Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc)). A plaintiff

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must also allege facts to support that a defendant was deliberately indifferent to a serious

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medical need.

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1051, 1060 (9th Cir. 2004). Deliberate indifference may occur if “prison officials deny, delay

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or intentionally interfere with medical treatment.” Hutchinson v. United States, 838 F.2d 390,

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394 (9th Cir.1988).

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without more, does not violate a prisoner’s Eighth Amendment rights.”

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1132 (quoting Hutchinson, 838 F.2d at 394).

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TERMPS REF

constitutionally adequate medical care.

To state a claim for denial of constitutionally adequate

without more, is insufficient to state a claim against a jailor for deliberate indifference unless

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“Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d

Mere negligence, however, “in diagnosing or treating a medical condition,
Lopez, 203 F.3d at

Further, a delay in receiving medical care,

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the plaintiff can show that the delay in treatment harmed him. Shapley v. Nevada Bd. of State

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Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985).

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does not amount to deliberate indifference. See Toguchi, 391 F.3d at 1058. Rather, to prevail

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on a claim involving choices between alternative courses of treatment, a prisoner must show

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that the chosen course was medically unacceptable under the circumstances and was chosen

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in conscious disregard of an excessive risk to the prisoner’s health. Id.

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A difference in medical opinion also

In Counts III, IV (in part), and V, Plaintiff alleges that all of the Defendants acted with

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deliberate indifference to his serious medical needs.

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department Defendants ignored and failed to treat his obvious injuries or to have him

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In Count VIII, he alleges that the fire

transported to the hospital.

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Plaintiff sufficiently alleges facts to support that he had obvious and serious injuries

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following his arrest and that despite obvious serious injuries and his repeated entreaties for

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medical attention, the police and fire department Defendants ignored his injuries and/or

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delayed providing or obtaining medical care.

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Rosemary repeatedly disregarded his obvious injuries and placed him in an isolated room so

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that his entreaties for assistance would not disturb other patients in the emergency room.

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These Defendants will be required to respond to Count III.

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Plaintiff also sufficiently alleges that Nurse

However, Plaintiff fails to allege facts to support that Dr. Kelly acted with deliberate

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indifference to his serious medical needs.

Indeed, Plaintiff alleges that Defendant Kelly

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promptly treated him after seeing him.

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Dr. Kelly acted with deliberate indifference to his serious medical needs, Counts III, IV (in

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part), V, and VIII will be dismissed against Kelly.

Because Plaintiff fails to allege facts to support that

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In Counts VI and VII, Plaintiff contends that the excessive use of force and deliberate

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indifference to his serious medical injuries also violated his due process and equal protection

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rights.

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TERMPS REF

D.

Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that

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Due Process

“[I]f a constitutional claim is covered by a specific constitutional provision, such as the

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specific provision, not under the rubric of substantive due process [under the Fourteenth

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Amendment].” Crown Point Dev., Inc. v. City of Sun Valley, 506 F.3d 851, 853 (9th Cir.

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2007) (citing Graham v. Connor, 490 U.S. 386, 388 (1989)); see Albright v. Oliver, 510 U.S.

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266, 273 (1994).

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specific constitutional provisions under the Fourth and Eighth Amendments, Plaintiff cannot

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state due process claims based on the same facts.

Because Plaintiff’s excessive force and medical claims are covered by

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The Equal Protection Clause of the Fourteenth Amendment provides that a state may

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not “deny to any person within its jurisdiction the equal protection of the laws,” which is

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essentially a direction that all persons similarly situated should be treated alike.

U.S. Const.,

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amend. XIV; see City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). A

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state practice that interferes with a fundamental right or that discriminates against a suspect

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class of individuals is subject to strict scrutiny. Massachusetts Bd. of Ret. v. Murgia, 427 U.S.

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307, 312 (1976); see City of Cleburne, 473 U.S. at 441.

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member of a suspect class, or that a fundamental right has been violated, a plaintiff must allege

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facts to support that he has been intentionally treated differently from others who are similarly

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situated without a reasonable basis therefor.

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562, 564 (2000).

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Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265 (1977).

See Village of Willowbrook v. Olech, 528 U.S.

Conclusory allegations do not suffice.

See Village of Arlington Heights v.

Plaintiff fails to allege facts to support that he is a member of a suspect class or the

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violation of a fundamental right.

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differently than similarly-situated persons.

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violation of his equal protection rights.

He also fails to allege facts to support that he was treated
Accordingly, Plaintiff fails to state a claim for

For the reasons discussed, Counts VI and VII will be dismissed for failure to state a

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claim.

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IV.

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TERMPS REF

Absent allegations that he is a

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Claims for Which an Answer Will be Required
As noted above, Plaintiff sufficiently alleges facts to support that the police Defendants

used excessive force against him.

He also sufficiently alleges facts to support that the police
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and the fire department Defendants and Maricopa County Registered Nurse Rosemary acted

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with deliberate indifference to his serious medical needs.

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to respond to Counts I-V and VII.

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V.

These Defendants will be required

Warnings

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A.

Release

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Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release.

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Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay

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the balance or (2) show good cause, in writing, why he cannot.

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in dismissal of this action.

Failure to comply may result

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B.

Address Changes

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Plaintiff must file and serve a notice of a change of address in accordance with Rule

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83.3(d) of the Local Rules of Civil Procedure.

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relief with a notice of change of address.

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Plaintiff must not include a motion for other

action.

Failure to comply may result in dismissal of this

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C.

Copies

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Plaintiff must serve Defendants, or counsel if an appearance has been entered, a copy

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of every document that he files.

Fed. R. Civ. P. 5(a).

Each filing must include a certificate

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stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Plaintiff must submit

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an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to comply may

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result in the filing being stricken without further notice to Plaintiff.

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D.

Possible Dismissal

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If Plaintiff fails to timely comply with every provision of this Order, including these

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963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to

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comply with any order of the Court).

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IT IS ORDERED:

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TERMPS REF

warnings, the Court may dismiss this action without further notice.

(1)

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See Ferdik v. Bonzelet,

Plaintiff’s Application to Proceed In Forma Pauperis is construed as a
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“Response” to the Court’s April 4, 2011 Show Cause Order, doc. 6. (Doc. 9.)
(2)

The April 4, 2011 Show Cause Order, doc. 6, is discharged based upon

Plaintiff’s Response, doc. 9.
(3)

Counts VI and VII and Defendants Caruso, Kelly, Hernandez, Matthews, Estrada,

Sampter, Nauyen, and Herd are dismissed without prejudice.
(4)

Defendants Opferbeck, Moyer, Quillman, Casados, Lopez, Fortune, Smoke,

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Coffey, Simpson, Knippel, Dunnington, Feller, and Maricopa County Hospital Registered

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Nurse Rosemary must answer Counts I-V and VIII.

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(5)

The Clerk of Court must send Plaintiff a service packet including the Complaint

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(Doc. 1), this Order, and both summons and request for waiver forms for Defendants

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Opferbeck, Moyer, Quillman, Casados, Lopez, Fortune, Smoke, Coffey, Simpson, Knippel,

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Dunnington, Feller, and Maricopa County Hospital Registered Nurse Rosemary.

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(6)

Plaintiff must complete and return the service packet to the Clerk of Court

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within 21 days of the date of filing of this Order. The United States Marshal will not provide

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service of process if Plaintiff fails to comply with this Order.

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(7)

If Plaintiff does not either obtain a waiver of service of the summons or

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complete service of the Summons and Complaint on a Defendant within 120 days of the filing

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of the Complaint or within 60 days of the filing of this Order, whichever is later, the action

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may be dismissed as to each Defendant not served.

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16.2(b)(2)(B)(i).

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(8)

Fed. R. Civ. P. 4(m); LRCiv

The United States Marshal must retain the Summons, a copy of the Complaint,

and a copy of this Order for future use.
(9)

The United States Marshal must notify Defendants of the commencement of this

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of Civil Procedure. The notice to Defendants must include a copy of this Order. The M ars hal

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must immediately file signed waivers of service of the summons. If a waiver of service

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TERMPS REF

action and request waiver of service of the summons pursuant to Rule 4(d) of the Federal Rules

of s ummons is returned as undeliverable or is not returned by a Defendant within 30

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1

days from the date the request for waiver was sent by the Marshal, the Marshal must:

2
3

(a)

personally serve copies of the Summons, Complaint, and this Order upon

Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil Procedure; and
(b)

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within 10 days after personal service is effected, file the return of service

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for Defendant, along with evidence of the attempt to secure a waiver of service of the

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summons and of the costs subsequently incurred in effecting service upon Defendant.

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The costs of service must be enumerated on the return of service form (USM- 285) and

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must include the costs incurred by the Marshal for photocopying additional copies of

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the Summons, Complaint, or this Order and for preparing new process receipt and

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return forms (USM-285), if required.

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personally served Defendant pursuant to Rule 4(d)(2) of the Federal Rules of Civil

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Procedure, unless otherwise ordered by the Court.

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(10)

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15

Costs of service will be taxed against the

A Defendant who agre e s to waive service of the Summons and Complaint

must return the signed waiver forms to the United States Marshal, not the Plaintiff.
(11)

Defendant must answer the Complaint or otherwise respond by appropriate

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motion within the time provided by the applicable provisions of Rule 12(a) of the Federal

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Rules of Civil Procedure.

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(12)

Any answer or response must state the specific Defendant by name on whose

19

behalf it is filed. The Court may strike any answer, response, or other motion or paper that

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does not identify the specific Defendant by name on whose behalf it is filed.

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(13)

This matter is referred to Magistrate Judge Lawrence O. Anderson pursuant to

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Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as

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authorized under 28 U.S.C. § 636(b)(1).

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DATED this 14th day of July, 2011.

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26
27
TERMPS REF

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