Ellsworth v. Kendall et al
Filing
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ORDER granting 15 Plaintiff's Motion for District Court Assistance to the extent set forth in this order. Paul Edward Carter, Office of the Attorney General, Liability Management Section, shall provide the forwarding address for defendant R ose Dacumos, if any, to the United States Marshal in a confidential memorandum indicating that the summons and complaint is to be delivered to that address on or before July 2, 2012; Within thirty (30) days of receipt of any available address from at torney Carter, the United States Marshal shall serve a copy of plaintiff's complaint and summons upon defendant Rose Dacumos in accordance with this order and the court's January 10, 2012 order granting, inter alia, plaintiff leave to proce ed in forma pauperis.The Clerk of the Court shall provide a copy of: (1) the court's January 10, 2012 order (Doc. 5]; (2) this order; (3) the complaint, summons and a blank U.S. Marshal form 285 to the attorney Carter for purposes of re-attempti ng service as to defendant Rose Dacumos; Alternatively, if attorney Carter is unable to procure defendant Rose Dacumos' address from the Florence facility, he shall notify this court and plaintiff in writing by no later than July 2, 2012. Signed by Senior Judge Robert C Broomfield on 5/18/12. (the service packet is being mailed to Atty Carter this date)(DMT)
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WO
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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James Jackson Ellsworth,
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Plaintiff,
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vs.
Dennis Kendall, et al.,
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Defendants.
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No. CIV-11-02554-PHX-RCB
O R D E R
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Introduction
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Plaintiff pro se, James Jackson Ellsworth, is incarcerated
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at the Arizona State Prison Complex-Florence, South Unit (“the
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Florence facility”).
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“Request for District Court Assistance” in serving defendant
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Rose Dacumos.
Req. (Doc. 15) at 9.
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Currently pending before the court is his
Background
On December 23, 2011, plaintiff, who claims to “suffer[]
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from multiple scler[o]sis[,]” filed the present action.
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(Doc. 1) at 3, ¶ 3.
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Florence facility were deliberately indifferent to his serious
Co.
He alleges that the defendants at the
medical needs in violation of the Eighth Amendment by failing
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to
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prescri[ption]” for one “to assist . . . with his mobility[.]”
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Id.
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provided with a cane, he fell, sustaining injuries to his head,
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which required hospitalization and stitches.
provide
him
with
a
cane
despite
“the
doctor[’s]
Plaintiff further alleges that as a result of not being
Id. at 4, ¶ 4.
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After being granted leave to proceed in forma pauperis,
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plaintiff was given 21 days from January 10, 2012, in which to
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complete and return the service packets to the Clerk of the
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Court as to defendants, “Nurse Rose, Nurse Judy, and Facility
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Health Administrator Dennis Kendall.”
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(4); and at 3:2-3.
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those completed service packets to the United States Marshal
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Service (“USMS”) for service as Fed.R.Civ.P. 4(c)(3) allows.
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Ord. (Doc. 5) at 5, ¶
Plaintiff did that, and the Clerk forwarded
Plaintiff had indicated that service was to be made upon
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each of the three defendants at the Florence facility.
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Defendants
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attorney
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executed waivers of service, which were filed on their behalf.
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See Docs. 8 and 9.
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returned unexecuted. The process receipt and return form (“form
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USM-285") indicated, “Agency verified - no ‘Nurse Rose’ employed
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at the facility listed.”
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Kendall
Paul
E.
Thereafter,
and
nurse
Carter,
Judy
Office
Jiminez,
of
the
through
Attorney
their
General,
As to “Nurse Rose,” however, the summons was
on
Doc. 7.
April
11,
2012,
the
court
granted
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plaintiff’s motion to amend his complaint “to indicate that
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defendant
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Dacumos[.]” Ord. (Doc. 12) at 1:13-14.
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also was given twenty days from the date of receipt of the
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service packet as to defendant Dacumos in which to complete and
“Nurse
Rose”
is
properly
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identified
as
“Rose
At that time, plaintiff
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return that packet to the Clerk of the Court for service by the
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USMS.
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service was to made upon defendant Dacumos at the Florence
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facility.
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returned packet - “RTS - No longer with Dept.[,]”1 and was
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returned as “Not Deliverable as Addressed Unable to Forward[.]”
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Id. (sic) at 1 and 2.
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See id.
See Doc. 14.
Having
Dacumos,
Plaintiff did that, again specifying that
twice
plaintiff
The form USM-285 indicated, “Facility
attempted
filed
and
the
failed
pending
to serve defendant
“request[]
[for]
the
10
Court’s assistance in serving” her.
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Plaintiff is seeking such assistance claiming that he “does not
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have
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Defendant Dacumos, and has no other means of effecting service.”
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Id. at 1:19-20.
the
ability
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to
conduct
a
Req. (Doc. 1) at 22.
search
for
the
address
of
Discussion
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At this juncture, the court is not yet contemplating
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dismissal pursuant to Fed.R.Civ.P. 4(m). That Rule does provide
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some context for plaintiff Ellsworth’s request though. Pursuant
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to Rule 4(m):
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If a defendant is not served within 120 days
after the complaint is filed, the court—
on motion or on its own after notice to the
plaintiff—must dismiss the action without
prejudice against that defendant or order that
service be made within a specified time. But
if the plaintiff shows good cause for the failure,
the court must extend the time for service for an
appropriate period.
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22
23
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25 Fed.R.Civ.P. 4(m). In a case such as this,
where the plaintiff
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1
Presumably, although the court cannot be certain, “RTS” refers
to defendant Rose Dacumos, as her name is plainly printed on the envelope
with that notation. See Doc. 14 at 2.
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1 is proceeding in forma pauperis, the USMS, upon order of the
2 court, shall serve the summons and the complaint. Fed.R.Civ.P.
3 4(c)(2). “[A]n incarcerated pro se plaintiff proceeding in forma
4 pauperis is entitled to rely on the U.S. Marshal for service of
5 the summons and complaint and . . . should not be penalized by
6 having his action dismissed for failure to effect service where
7 the U.S. Marshal or the court clerk has failed to perform his
8 duties.” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994)
9 (internal quotation marks and citation omitted), abrogated on
10 other grounds by Sandin v. Connor, 515 U.S. 472, 115 S.Ct. 2293,
11 132 L.Ed.2d 418 (1995). “So long as the prisoner has furnished
12 the
information
necessary
to
identify
the
defendant,
the
13 marshal's
failure
14 cause[.]”
Walker, 14 F.3d at 1422 (internal quotation marks and
15 citation omitted).
to
effect
service
is
automatically
good
However, where a pro se plaintiff fails to
16 “prove that he provided the [USMS] with sufficient information
17 to serve [a given defendant] or that [the plaintiff] in fact
18 requested
that
19 dismissal
of
20 discretion.
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[that
the
defendant]
unserved
be
served[,]”
defendant
is
not
sua
an
sponte
abuse
of
Walker, 14 F.3d at 1422.
In the present case, “because plaintiff has not yet been
22 able to ascertain the proper location where defendant [Dacumos]
23 may
now
be
served,
he
must
remedy
24 dismissal of his claims against him.”
the
situation
or
face
See Brooks v. Munoz, 2010
25 WL 2523939, at *1 (S.D.Cal. June 21, 2010) (citing Walker, 14
26 F.3d at 1421-22 (holding prisoner failed to show cause why
27 prison official should not be dismissed under Rule 4(m) where
28 prisoner failed to show he had provided Marshal with sufficient
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1 information to effectuate service)).
2 that
“neither
the
[USMS]
nor
The court is keenly aware
the
Court
may
engage
in
3 investigatory efforts on behalf of the parties to a lawsuit as
4 this
would
5 advocate.”
improperly
place
the
Court
in
the
role
of
an
DeRoche v. Funkhouser, 2008 WL 42277659, at *1
6 (D.Ariz. Sept. 16, 2008) (citing Hall v. Bellmon, 935 F.2d 1106,
7 1110 (10th Cir. 1991) (holding that the court should not assume
8 the role of advocate for a pro se litigant)); see also Ramirez
9 v. Denver Health Medical Center, 2006 WL 2527965, at *3 (D.Colo.
10 Aug. 30, 2006) (further noting that “[i]t is neither the role
11 nor
the
responsibility
of
the
Court
or
the
U.S.
Marshals
12 Service, to investigate the whereabouts or to locate parties to
13 a lawsuit[]”).
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Nonetheless, the court agrees with the approach taken in
15 Brooks that “as long as [the] defendant[’s] forwarding address
16 can
be easily ascertained by reference to the [facility’s]
17 personnel records, plaintiff is entitled to rely on the U.S.
18 Marshal to effect service upon this defendant on his behalf.”
19 Brooks, 2010 WL 2523939, at *1 (citing Puett v. Blandford, 912
20 F.2d
270, 275 (9th Cir. 1990)); cf. Colon v. Zia, 2011 WL
21 6025657, at *3 (E.D.Cal. Dec. 2, 2011) (where state prisoner was
22 proceeding pro se, the court ordered the USMS to “enlist[] the
23 assistance
of
the
Legal
Affairs
Division
of”
the
state
24 department of corrections, to “attempt to serve [defendant] at
25 another address); Lateef v. Jackson, 2009 WL 393857, at *2
26 (N.D.Cal. Feb. 13, 2009) (where plaintiff inmate’s summons was
27 returned with the comment that the defendant was “no longer at
28 the facility[,]” the court ordered the Clerk of the Court to
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1 send
a
copy
of
2 Coordinator[,]
3 address
court’s
who
is
to
requested
the
to
facility
provide
“Litigation
any
forwarding
information that is available with respect to” the
4 unserved defendant).
5 a
order
former
Certainly, requiring a prison to provide
employee’s
forwarding
address,
which
is
“easily
6 ascertained by reference to the [prison’s] personnel records,”
7 does not require either the court or the USMS to engage in any
8 type of investigative efforts.
9 *1 (citation omitted).
See Brooks, 2010 WL 2523939, at
This is not a situation such as Colon v.
10 Zia, 2011 WL 6025657 (E.D.Cal. Dec. 2, 2011), where the inmate
11 plaintiff is “request[ing] the Court to direct the Marshal to
12 investigate records of the Department of Justice, Federal Bureau
13 of Investigation, [the California Department of Corrections and
14 Rehabilitation],
and
[the]
State
of
California
to
15 identifying information to locate and serve” a defendant.
find
Id.
16 at *3.
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In light of the foregoing, and consistent with the court’s
18 approach in Brooks, the court hereby directs that Paul Edward
19 Carter, Office of the Attorney General, Liability Management
20 Section,
and
attorney
of
record
for
the
served
defendants
21 herein, contact the Florence facility, and provide a current
22 address for defendant Rose Dacumos, if such address is within
23 that
facility’s records or possession, and to forward that
24 address to the USMS in a confidential memorandum.
25 2010 WL 2523939, at *1.
26 Carter,
may
endeavor
to
See Brooks,
Alternatively, attorney Paul Edward
secure
27 defendant Rose Dacumos.
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a
waiver
of
service
from
1
2
Conclusion
Accordingly, IT IS HEREBY ORDERED that:
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(1)
Plaintiff’s “Request for District Court Assistance”
5 (Doc. 15) is GRANTED to the extent set forth above;
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(2)
8 Liability
Paul Edward Carter, Office of the Attorney General,
Management
Section,
shall
provide
the
forwarding
9 address for defendant Rose Dacumos, if any, to the United States
10 Marshal in a confidential memorandum indicating that the summons
11 and complaint is to be delivered to that address on or before
12 July 2, 2012;
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(3)
Within thirty (30) days of receipt of any available
15 address from attorney Carter, the United States Marshal shall
16 serve a copy of plaintiff’s complaint and summons upon defendant
17 Rose Dacumos in accordance with this order and the court’s
18 January 10, 2012 order granting, inter alia, plaintiff leave to
19 proceed in forma pauperis;
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(4) The Clerk of the Court shall provide a copy of: (1) the
22 court’s January 10, 2012 order (Doc. 5]; (2) this order; (3) the
23 complaint, summons and a blank U.S. Marshal form 285 to the
24 attorney Carter for purposes of re-attempting service as to
25 defendant Rose Dacumos;
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(5)
Alternatively, if attorney Carter is unable to procure
28 defendant Rose Dacumos’ address from the Florence facility, he
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1 shall notify this court and plaintiff in writing by no later
2 than July 2, 2012.
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DATED this
18th
day of May, 2012.
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10 Copies to counsel of record and plaintiff pro se
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