Ellsworth v. Kendall et al

Filing 16

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

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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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25 Fed.R.Civ.P. 4(m). In a case such as this,

where the plaintiff

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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
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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

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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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