Smith #120870 v. Ryan et al

Filing 6

ORDER that 2 Plaintiff's Application to Proceed In Forma Pauperis is granted, Plaintiff must pay the $350.00 filing fee. Plaintiff's Motion for Appointment of Counsel (Doc. 4 ) is denied. Defendants Ryan, Godlevsky, Streadman, Cre dio, Unknown Nurse, Lee, Unknown Facility Health Administrator, and Unknown Health Services Regional Operations Director are dismissed without prejudice. Defendants Musachio and Woods must answer Counts One and Two. The Clerk must send Plaintiff t his Order, and a copy of the Marshal's Process Receipt & Return form (USM-285) and Notice of Lawsuit & Request for Waiver of Service of Summons form for Defendants Musachio and Woods. This matter is referred to Magistrate Judge David K. Duncan pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings. Signed by Judge David G Campbell on 8/10/15. (Attachments: # 1 Service Packet Letter, # 2 Service Packet, # 3 Service Packet #2)(LSP)

1
2

KM
WO

3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Joseph Lavance Smith,

10
11

No. CV 15-1278-PHX-DGC (DKD)

Plaintiff,
v.

ORDER

12
13

Charles L. Ryan, et al.,
Defendants.

14
15
16

Plaintiff Joseph Lavance Smith, who is confined in the Arizona State Prison

17

Complex-Eyman (ASPC-Eyman), has filed a pro se civil rights Complaint pursuant to 42

18

U.S.C. § 1983 (Doc. 1) and an Application to Proceed In Forma Pauperis (Doc. 2). The

19

Court will order Defendants Musachio and Woods to answer Counts One and Two of the

20

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

21

I.

Application to Proceed In Forma Pauperis and Filing Fee

22

Plaintiff’s Application to Proceed In Forma Pauperis will be granted. 28 U.S.C.

23

§ 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1).

24

The Court will assess an initial partial filing fee of $4.50. The remainder of the fee will

25

be collected monthly in payments of 20% of the previous month’s income credited to

26

Plaintiff’s trust account each time the amount in the account exceeds $10.00. 28 U.S.C.

27

§ 1915(b)(2). The Court will enter a separate Order requiring the appropriate government

28

agency to collect and forward the fees according to the statutory formula.
TERMPSREF

1

II.

2
3
4
5
6
7

The Court is required to screen complaints brought by prisoners seeking relief
against a governmental entity or an officer or an employee of a governmental entity. 28
U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff
has raised claims that are legally frivolous or malicious, that fail to state a claim upon
which relief may be granted, or that seek monetary relief from a defendant who is
immune from such relief. 28 U.S.C. § 1915A(b)(1)–(2).

8
9
10
11
12
13

A pleading must contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8
does not demand detailed factual allegations, “it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation.”

16
17
18
19
20
21
22
23
24
25
26

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id.

14
15

Statutory Screening of Prisoner Complaints

“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. “Determining whether a complaint states a plausible
claim for relief [is] . . . a context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff’s
specific factual allegations may be consistent with a constitutional claim, a court must
assess whether there are other “more likely explanations” for a defendant’s conduct. Id.
at 681.
But as the United States Court of Appeals for the Ninth Circuit has instructed,
courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338,
342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less

27
28
TERMPSREF

-2-

1
2
3

stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam)).
III.

4
5
6
7
8
9
10

Plaintiff names the following Defendants in his two-count Complaint: Arizona
Department of Corrections (ADOC) Director Charles L. Ryan; “SD Handler”
Correctional Officer II Musachio; Assistant Deputy Warden Woods; Correctional
Officers II Godlevsky and Streadman; Northern Region Director Ron Credio; Unknown
Nurse; Deputy Warden of Operations Lee; Unknown Facility Health Administrator at
ASPC-Eyman; and Unknown Health Services Regional Operations Director at ASPCEyman.

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

Complaint

In Count One, Plaintiff alleges his Eighth Amendment rights were violated when
Defendant Musachio used excessive force on him. Plaintiff claims that on July 15, 2013,
he was returning to his cell when Defendant Musachio and his canine exited the control
room passage. Plaintiff states that as he was walking through the passage, Defendant
Musachio and the canine “closed in on the Plaintiff, at which time the Plaintiff politely
asked [Defendant Musachio] to keep the dog from behind him, for his fear of its
closeness and being bit.” Plaintiff claims Defendant Musachio came closer and told
Plaintiff to “shut the fuck up and hurry up and get to his cell.” Plaintiff went to his
assigned cell as directed, but claims “the verbal assault initiated by CO 2 Musachio
continued as both parties hurled profanities.” Plaintiff was then locked in his assigned
cell.
Plaintiff claims Defendant Musachio left Plaintiff’s cell for two to four minutes
and then returned and resumed his verbal abuse.

Plaintiff alleges that Defendant

Musachio then yelled to Defendant Streadman to open Plaintiff’s cell door. Defendant
Musachio then ordered Plaintiff to close the cell door behind him. Plaintiff complied.
Plaintiff claims “the argument continued as CO 2 Musachio ordered the Plaintiff to come
closer, saying ‘you want to fight motherfucker, come on.’” Plaintiff claims he refused

28
TERMPSREF

-3-

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

the officer’s challenge and took a non-threatening posture against the wall directly next to
his cell.
Plaintiff claims that Defendant Musachio continued with his hostilities while
removing the canine’s muzzles and leash, and threw the restraints in the general direction
of Defendant Godlevsky, who was about 10 feet away and looking on. Plaintiff asked
Defendant Godlevsky to call a sergeant, but she did not respond.
Defendant Musachio ordered Plaintiff to the floor. Plaintiff states he “refused and
remained in the same non-threatening posture against the wall, out of fear of being bit.”
An unknown officer approached and repeated the order and Plaintiff again refused. The
officer then sprayed Plaintiff with a chemical agent, and Defendant Musachio took hold
of Plaintiff’s right wrist, and pinned Plaintiff to the wall. Defendant Musachio then
shook Plaintiff’s right arm and the unleashed canine attacked Plaintiff and bit into
Plaintiff’s right arm. Plaintiff states that the canine shook his arm two or three times,
causing intense pain, before Defendant Musachio commanded the canine to release
Plaintiff. The canine released and then immediately bit Plaintiff’s right hip and groin
region before releasing again. Plaintiff was then taken to the floor and put in restraints.
Plaintiff alleges Defendant Musachio’s behavior constitutes excessive force
because Plaintiff was locked in his cell, and posed no danger to staff or other inmates,
before the physical confrontation with the dog began.

Plaintiff further contends

Defendant Musachio’s actions violated ADOC policy relating to canines and were
“malicious and sadistically designed for the purpose of causing harm, out of and for
retaliation all of which horrific physical and psychological trauma.”
Plaintiff claims Defendant Godlevsky violated his constitutional rights by failing
to intervene on Plaintiff’s behalf. Plaintiff alleges Defendant Streadman violated his
constitutional rights by “allowing further access to the Plaintiff and not intervening on the
Plaintiff’s behalf.”

27
28
TERMPSREF

-4-

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

Plaintiff claims Defendants Woods, Lee, Credio, and Ryan violated his
constitutional rights because they are responsible for the actions of Defendants Musachio,
Godlevsky, and Streadman.
In Count Two, Plaintiff alleges his Eighth Amendment rights were violated when
he was denied adequate medical treatment for his wounds resulting from the dog bites.
Plaintiff claims that after the incident, he was taken to medical where Defendant
Unknown Nurse took photos and measured the diameter of Plaintiff’s wounds.
Defendant Nurse informed Defendant Woods “that the Plaintiff would need to be taken
for outside medical care because she wasn’t equipped to handle the sutures necessary for
the injuries–the nurse stated ar[r]angements had been made.” Plaintiff claims Defendant
Woods had a brief conference with Defendant Lee and then “directed the nurse to clean
and gauze the Plaintiff’s wounds because ‘they’re not that bad.’” Plaintiff claims that as
a result of not receiving the proper treatment, his wounds bled for seven days.
Plaintiff claims that Defendant Woods violated his constitutional rights by
refusing Plaintiff “a community standard of health care” and by “abusing her authority to
personally

direct

the

medical

care

given,

which

resulted

in

unnecessary

disfigurement/scarring, pain and suffering.” Plaintiff further claims Defendant Unknown
Nurse violated his constitutional rights by “not providing health care substantial to the
injuries (i.e. sutures or [tetanus] shot).”
Plaintiff alleges Defendant Lee violated his constitutional rights by “not
maintaining control of the situation, not intervening when he witness[ed] A.D.W. Woods
overstepping her authority.” Plaintiff contends Defendants Facility Health Administrator
and Health Services Regional Operations Director violated his constitutional rights
because they are responsible for the actions of the Rynning Unit medical staff.
Plaintiff seeks monetary damages.

26
27
28
TERMPSREF

-5-

1
2

IV.

Failure to State a Claim
A.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

Count One
1.

Failure to Intervene

An Eighth Amendment claim requires a sufficiently culpable state of mind by the
Defendants, known as “deliberate indifference.” Farmer v. Brennan, 511 U.S. 825, 834
(1994). Deliberate indifference is a higher standard than negligence or lack of ordinary
due care for the prisoner’s safety. Id. at 835. To state a claim of deliberate indifference,
plaintiffs must meet a two-part test. “First, the alleged constitutional deprivation must be,
objectively, sufficiently serious”; and the “official’s act or omission must result in the
denial of the minimal civilized measure of life’s necessities.”

Id. at 834 (internal

quotations omitted). Second, the prison official must have a “sufficiently culpable state
of mind,” i.e., he must act with “deliberate indifference to inmate health or safety.” Id.
(internal quotations omitted). In defining “deliberate indifference” in this context, the
Supreme Court has imposed a subjective test: “the official must both be aware of facts
from which the inference could be drawn that a substantial risk of serious harm exists,
and he must also draw the inference.” Id. at 837 (emphasis added).
Prison officials “can violate a prisoner’s Eighth Amendment rights by failing to
intervene.” Robins v. Meecham, 60 F.3d 1436, 1442 (9th Cir. 1995). To be liable for
failing to take reasonable steps to protect the inmate from harm from another officer’s use
of excessive force, the defendant must have had a “realistic opportunity” to prevent the
attack. Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994); Hale v. Townley, 45 F.3d 914,
919 (5th Cir. 1995).
Plaintiff has not alleged sufficient facts to demonstrate that Defendants Godlevsky
or Streadman were both actually aware that Defendant Musachio was using excessive
force on Plaintiff, i.e. that both Defendants believed the force being used was excessive,
and that they had a realistic opportunity to intervene. To the extent Plaintiff claims
Defendant Streadman allowed Defendant Musachio into Plaintiff’s cell, Plaintiff has not

28
TERMPSREF

-6-

1
2
3
4
5

alleged Defendant Streadman did so while also being aware Defendant Musachio
intended to use excessive force on Plaintiff. With respect to Defendant Godlevsky,
Plaintiff has alleged only that that she was nearby during the incident; he has not alleged
facts showing she had a realistic opportunity to intervene. Accordingly, Plaintiff’s claims
against these Defendants will be dismissed.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

2.

Defendants Woods, Lee, Credio, and Ryan

To state a valid claim under § 1983, plaintiffs must allege that they suffered a
specific injury as a result of specific conduct of a defendant and show an affirmative link
between the injury and the conduct of that defendant. See Rizzo v. Goode, 423 U.S. 362,
371-72, 377 (1976).

There is no respondeat superior liability under § 1983, and

therefore, a defendant’s position as the supervisor of persons who allegedly violated
Plaintiff’s constitutional rights does not impose liability. Monell v. New York City Dep’t
of Soc. Servs., 436 U.S. 658, 691-92 (1978); Hamilton v. Endell, 981 F.2d 1062, 1067
(9th Cir. 1992); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). “Because vicarious
liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each
Government-official defendant, through the official’s own individual actions, has
violated the Constitution.” Iqbal, 556 U.S. at 676.
Plaintiff alleges only that Defendants Woods, Lee, Credio, and Ryan are liable as
supervisors of Defendant Musachio. Plaintiff has not alleged that these Defendants
personally participated in a deprivation of Plaintiff’s constitutional rights, were aware of
a deprivation and failed to act, or formed policies that resulted in Plaintiff’s injuries.
Plaintiff has therefore failed to state a claim against Defendants Woods, Lee, Credio, and
Ryan in Count One.
B.

Count Two

Not every claim by a prisoner relating to inadequate medical treatment states a
violation of the Eighth or Fourteenth Amendment. To state a § 1983 medical claim, a
plaintiff must show that the defendants acted with “deliberate indifference to serious

28
TERMPSREF

-7-

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v.
Gamble, 429 U.S. 97, 104 (1976)). A plaintiff must show (1) a “serious medical need”
by demonstrating that failure to treat the condition could result in further significant
injury or the unnecessary and wanton infliction of pain and (2) the defendant’s response
was deliberately indifferent. Jett, 439 F.3d at 1096 (quotations omitted).
“Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d
1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must
both know of and disregard an excessive risk to inmate health; “the official must both be
aware of facts from which the inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. Deliberate
indifference in the medical context may be shown by a purposeful act or failure to
respond to a prisoner’s pain or possible medical need and harm caused by the
indifference. Jett, 439 F.3d at 1096. Deliberate indifference may also be shown when a
prison official intentionally denies, delays, or interferes with medical treatment or by the
way prison doctors respond to the prisoner’s medical needs. Estelle, 429 U.S. at 104-05;
Jett, 439 F.3d at 1096.
Deliberate indifference is a higher standard than negligence or lack of ordinary
due care for the prisoner’s safety. Farmer, 511 U.S. at 835. “Neither negligence nor
gross negligence will constitute deliberate indifference.” Clement v. California Dep’t of
Corr., 220 F. Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs.,
622 F.2d 458, 460 (9th Cir. 1980) (mere claims of “indifference,” “negligence,” or
“medical malpractice” do not support a claim under § 1983). “A difference of opinion
does not amount to deliberate indifference to [a plaintiff’s] serious medical needs.”
Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). A mere delay in medical care,
without more, is insufficient to state a claim against prison officials for deliberate
indifference. See Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407
(9th Cir. 1985). The indifference must be substantial. The action must rise to a level of

28
TERMPSREF

-8-

1

“unnecessary and wanton infliction of pain.” Estelle, 429 U.S. at 105.

2
3
4
5
6
7
8
9
10

1.

Defendant Unknown Nurse

Plaintiff has not alleged facts showing that Defendant Unknown Nurse was
deliberately indifferent to Plaintiff’s serious medical needs.

Plaintiff states that

Defendant Nurse informed Defendant Woods she did not have sufficient ability to suture
Plaintiff’s wounds and that she had arranged for Plaintiff to receive outside care, but that
Defendant Woods overrode this decision. Plaintiff does not allege that Defendant Nurse
had any authority to obtain outside care for Plaintiff after it was denied by Defendant
Woods, and his facts indicate she treated the wounds as well as she was able to at the
facility. Plaintiff has therefore failed to state a claim against Defendant Unknown Nurse.

11

2.

12

Defendants Lee, Facility Health Administrator, and Regional
Operations Director

13
14
15
16
17
18
19
20
21
22
23
24
25
26

With respect to Defendant Lee, Plaintiff alleges only that Defendant Lee failed to
maintain control of the situation and failed to intervene to countermand Defendant
Woods’ instructions. Plaintiff’s only factual allegations regarding Defendant Lee are that
Defendant Lee and Defendant Woods had a brief conversation before Defendant Woods
instructed the nurse not to send Plaintiff for outside treatment. Plaintiff does not describe
the content of the conversation, does not allege that Defendant Lee was actually aware of
the severity of Plaintiff’s injuries, or allege that Defendant Lee participated in any way in
the decision to treat Plaintiff at the facility. Plaintiff has failed to state a claim against
Defendant Lee.
With respect to the Facility Health Administrator and the Regional Operations
Director, Plaintiff alleges these Defendants are liable as the supervisors of medical staff.
As noted above, there is no supervisory liability in § 1983. Plaintiff has therefore failed
to state a claim against these Defendants.

27
28
TERMPSREF

-9-

1

V.

2
3
4
5
6

Liberally construed, Plaintiff has adequately stated an Eighth Amendment
excessive force claim against Defendant Musachio in Count One and an Eighth
Amendment medical claim against Defendant Woods in Count Two. The Court will
require these Defendants to answer the Complaint.
VI.

7
8
9
10
11
12
13
14
15
16
17
18

21
22
23
24
25
26
27

Motion for Appointment of Counsel
O July 9, 2015, Plaintiff filed a Motion for Appointment of Counsel (Doc. 4).

There is no constitutional right to the appointment of counsel in a civil case. See Ivey v.
Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982). In proceedings
in forma pauperis, the court may request an attorney to represent any person unable to
afford one.

28 U.S.C. § 1915(e)(1).

Appointment of counsel under 28 U.S.C.

§ 1915(e)(1) is required only when “exceptional circumstances” are present. Terrell v.
Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).

A determination with respect to

exceptional circumstances requires an evaluation of the likelihood of success on the
merits as well as the ability of Plaintiff to articulate his claims pro se in light of the
complexity of the legal issue involved. Id. “Neither of these factors is dispositive and
both must be viewed together before reaching a decision.” Id. (quoting Wilborn v.
Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).

19
20

Claims for Which an Answer Will be Required

Having considered both elements, it does not appear at this time that exceptional
circumstances are present that would require the appointment of counsel in this case.
Plaintiff is in no different position than many pro se prisoner litigants. The Court will
therefore deny without prejudice Plaintiff’s Motion for Appointment of Counsel.
VII.

Warnings
A.

Release

If Plaintiff is released while this case remains pending, and the filing fee has not
been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court
that he intends to pay the unpaid balance of his filing fee within 120 days of his release or

28
TERMPSREF

- 10 -

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

(2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may
result in dismissal of this action.
B.

Address Changes

Plaintiff must file and serve a notice of a change of address in accordance with
Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion
for other relief with a notice of change of address. Failure to comply may result in
dismissal of this action.
C.

Copies

Because Plaintiff is currently confined in an Arizona Department of Corrections
unit subject to General Order 14-17, Plaintiff is not required to serve Defendants with a
copy of every document he files or to submit an additional copy of every filing for use by
the Court, as would ordinarily be required by Federal Rule of Civil Procedure 5 and
Local Rule of Civil Procedure 5.4. If Plaintiff is transferred to a unit other than one
subject to General Order 14-17, he will be notified of the requirements for service and
copies for the Court that are required for inmates whose cases are not subject to General
Order 14-17.
D.

Possible Dismissal

If Plaintiff fails to timely comply with every provision of this Order, including
these warnings, the Court may dismiss this action without further notice. See Ferdik v.
Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action
for failure to comply with any order of the Court).
IT IS ORDERED:
(1)

Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 2) is granted.

(2)

As required by the accompanying Order to the appropriate government

agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing
fee of $4.50.
(3)

Plaintiff’s Motion for Appointment of Counsel (Doc. 4) is denied.

28
TERMPSREF

- 11 -

1
2
3

(4)

Unknown Facility Health Administrator, and Unknown Health Services Regional
Operations Director are dismissed without prejudice.

4

(5)

7

10

for Waiver of Service of Summons form for Defendants Musachio and Woods.
(7)

13
14
15

provide service of process if Plaintiff fails to comply with this Order.
(8)

filing of the Complaint or within 60 days of the filing of this Order, whichever is later,
the action may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m);
LRCiv 16.2(b)(2)(B)(ii).
(9)

20
21
22

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

Complaint, and a copy of this Order for future use.

18
19

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

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

16
17

Plaintiff must complete1 and return the service packet to the Clerk of Court

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

11
12

The Clerk of Court must send Plaintiff this Order, and a copy of the

Marshal’s Process Receipt & Return form (USM-285) and Notice of Lawsuit & Request

8
9

Defendants Musachio and Woods must answer Counts One and Two.

(6)

5
6

Defendants Ryan, Godlevsky, Streadman, Credio, Unknown Nurse, Lee,

(10)

The United States Marshal must notify Defendants of the commencement

of this action and request waiver of service of the summons pursuant to Rule 4(d) of the
Federal Rules of Civil Procedure. The notice to Defendants must include a copy of this
Order.

The Marshal must immediately file signed waivers of service of the

summons. If a waiver of service of summons is returned as undeliverable or is not

23
24
25
26
27
28

1

If a Defendant is an officer or employee of the Arizona Department of
Corrections, Plaintiff must list the address of the specific institution where the officer or
employee works. Service cannot be effected on an officer or employee at the Central
Office of the Arizona Department of Corrections unless the officer or employee works
there.
TERMPSREF

- 12 -

1
2

returned by a Defendant within 30 days from the date the request for waiver was
sent by the Marshal, the Marshal must:

3
4
5

(a)

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

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

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

(b)

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

service for Defendant, along with evidence of the attempt to secure a waiver of
service of the summons and of the costs subsequently incurred in effecting service
upon Defendant. The costs of service must be enumerated on the return of service
form (USM-285) and must include the costs incurred by the Marshal for
photocopying additional copies of the Summons, Complaint, or this Order and for
preparing new process receipt and return forms (USM-285), if required. Costs of
service will be taxed against the personally served Defendant pursuant to Rule
4(d)(2) of the Federal Rules of Civil Procedure, unless otherwise ordered by the
Court.
(11)

A Defendant who agrees to waive service of the Summons and

Complaint must return the signed waiver forms to the United States Marshal, not
the Plaintiff.
(12)

Defendants must answer the Complaint or otherwise respond by

appropriate motion within the time provided by the applicable provisions of Rule 12(a) of
the Federal Rules of Civil Procedure.
(13)

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

whose behalf it is filed. The Court may strike any answer, response, or other motion or
paper that does not identify the specific Defendant by name on whose behalf it is filed.

25
26
27
28
TERMPSREF

- 13 -

1
2
3
4

(14)

This matter is referred to Magistrate Judge David K. Duncan pursuant to

Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as
authorized under 28 U.S.C. § 636(b)(1).
Dated this 10th day of August, 2015.

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
TERMPSREF

- 14 -