Kindred v. California Department of Mental Health et al

Filing 32

ORDER DENYING Plaintiff's 26 Request for Entry of Default against Defendant Fields; ORDER GRANTING Defendants' 28 Motion to Quash Service; ORDER SETTING ASIDE Finding that Defendant Fields was Served with Process; ORDER GRANTING Plaintiff Additional Time to Effect Service upon Defendant Fields signed by Magistrate Judge Gary S. Austin on 9/28/2011. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD S. KINDRED, 1:08-cv-01321-AWI-GSA-PC 12 Plaintiff, ORDER DENYING PLAINTIFF’S REQUEST FOR ENTRY OF DEFAULT AGAINST DEFENDANT FIELDS (Doc. 26.) 13 v. 14 15 CALIFORNIA DEPARTMENT OF MENTAL HEALTH, et al., ORDER GRANTING DEFENDANTS’ MOTION TO QUASH SERVICE (Doc. 28.) 16 Defendants. 17 ORDER SETTING ASIDE FINDING THAT DEFENDANT FIELDS WAS SERVED WITH PROCESS 18 19 ORDER GRANTING PLAINTIFF ADDITIONAL TIME TO EFFECT SERVICE UPON DEFENDANT FIELDS 20 21 / 22 23 I. BACKGROUND 24 Richard S. Kindred (“Plaintiff”), a civil detainee presently detained at Coalinga State 25 Hospital (“CSH”), is proceeding pro se and in forma pauperis in this civil rights action pursuant to 26 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on September 5, 2008. 27 (Doc. 1.) This action now proceeds on Plaintiff’s original Complaint against defendants Barbara 28 1 1 Devine1 and Linda Fields,2 for the violation of Plaintiff’s rights to freely exercise his religion under 2 the First Amendment.3 Id. 3 On July 12, 2011, the Court found that “[d]efendant Linda Fields was served with process 4 on April 6, 2011, but has not appeared in this action.” (Findings and Recommendations, Doc. 25 5 at 1, fn.2.) On July 15, 2011, Plaintiff filed a request for entry of default against defendant Fields. 6 (Doc. 26.) On August 5, 2011, defendants Devine and Ahlin filed an opposition to Plaintiff’s 7 request.4 (Doc. 27.) On August 10, 2011, defendants Devine and Ahlin filed a motion to quash 8 service of the summons upon defendant Fields, and requested the Magistrate Judge to set aside the 9 finding that defendant Fields was served with the complaint. (Doc. 28.) On August 15, 2011, 10 Plaintiff filed a reply to defendants’ opposition to the request for entry of default. (Doc. 29.) 11 Plaintiff’s request for entry of default, defendants’ motion to quash, and defendants’ request 12 for the Court to set aside its finding are now before the Court. 13 II. REQUEST FOR ENTRY OF DEFAULT 14 Entry of default is appropriate as to any party against whom a judgment for affirmative relief 15 is sought that has failed to plead or otherwise defend as provided by the Federal Rules of Civil 16 Procedure and where that failure is shown by affidavit or otherwise. See Fed. R. Civ. P. 55(a). Rule 17 12 of the Federal Rules of Civil Procedure provides, “[A] defendant must serve an answer within 18 21 days after being served with the summons and complaint; or if it has timely waived service under 19 Rule 4(d), within 60 days after the request for a waiver was sent.” Fed. R. Civ. P. 12(a)(1)(A). 20 Under Rule 4(d), a defendant may waive service of a summons by signing and returning a waiver 21 of service. Fed. R. Civ. P. 4(d). 22 /// 23 1 24 25 Plaintiff spelled this defendant’s name as “Barbra DeVine” in the Complaint. (Cmpl., Doc. 1 at 4.) Defendants spell this defendant’s name as “Barbara Devine.” (Doc. 17 at 1.) The Court uses the spelling given by defendants. 2 26 Defendant Linda Fields has not appeared in this action. 3 27 28 On September 12, 2011, the Court dismissed all remaining claims and defendants from this action, based on Plaintiff’s failure to state a claim. (Doc. 30.) 4 Defendant Ahlin was dismissed from this action on September 12, 2011. Id. 2 1 Before a default will be entered, the court clerk must be satisfied from Plaintiff’s request and 2 accompanying documentation that (1) defendant has been served with the summons (or has agreed 3 to waive service); (2) the time allowed by law for responding has expired; (3) defendant has failed 4 to file a pleading or motion permitted by law; and (4) defendant is neither a minor nor an 5 incompetent person. Fed. R. Civ. P. 55(b)(1); see First American Bank, N.A. v. United Equity Corp. 6 89 F.R.D. 81, 86 (D.C.D.C. 1981). 7 Plaintiff argues that default should be entered against defendant Fields because defendant 8 Fields has not responded to the complaint as required by Federal Rule of Civil Procedure 12(a), and 9 counsel for defendants does not represent defendant Fields in this action. 10 In opposition, defendants argue that defendant Fields was not properly served. Defendants 11 acknowledge that the Marshal served the complaint on defendant Fields by leaving it with Melica 12 Villalobos, litigation coordinator for CSH, on April 6, 2011. However, defendants provide evidence 13 that the litigation coordinator was not authorized to accept service for defendant Fields. The 14 litigation coordinator was only authorized to accept service for current employees of CSH, and she 15 erroneously accepted service for defendant Fields, who has not been employed by CSH since April 16 30, 2009. (Declaration of Melica Villalobos, Doc. 27-2 at ¶¶2-5.) Moreover, counsel for defendants, 17 Deputy California Attorney General (“DAG”) Lisa A. Tillman (“Counsel”), does not have any means 18 of contacting defendant Fields to obtain authorization to represent her. (Declaration of Lisa Tillman, 19 Doc. 27-1.) Counsel sent a letter to defendant Fields at Fields’ last known address, but the mail was 20 returned unopened with a postal service notation on the envelope that she had moved and left no 21 forwarding address. Id. Defendants request the Court to quash the service and set aside the Court’s 22 finding that defendant Fields has been served. 23 In reply, Plaintiff argues that the Attorney General’s Office lacks authority to oppose the 24 motion for default because the Attorney General does not represent defendant Fields. Plaintiff 25 requests the Court to direct the Marshal to take legal action against DAG Lisa Tillman and Melica 26 Villalobos for withholding information concerning defendant Fields, and to notify the American Bar 27 Association. Plaintiff also requests the Court to remove the Attorney General as counsel for 28 /// 3 1 defendants Ahlin and Devine, arguing that a conflict of interest exists because the Attorney General 2 is obligated to prosecute offenders of state laws and defend those same offenders at the same time. 3 Plaintiff relies on the court record in his assertion that defendant Fields has not replied to the 4 complaint in accordance with Rule 12(a). The return of service filed by the United States Marshal 5 (“Marshal”) shows that on September 23, 2010, the Marshal sent a Waiver of Service form on behalf 6 of Plaintiff to defendant Fields. (See Doc. 24.) By March 14, 2011, the Waiver of Service form had 7 not been returned by defendant Fields. Id. On April 6, 2011, the Marshal personally served 8 defendant Fields at CSH via Litigation Coordinator Melica Villalobos. Id. On April 14, 2011, the 9 Marshal filed the return of service with the Court. (Doc. 24.) To date, defendant Fields has not 10 appeared in this action. (Court Record.) Therefore, more than twenty-one days have passed since 11 the April 6, 2011 date of personal service reported by the Marshal, exceeding the time allowed Rule 12 12, indicating that defendant Fields failed to respond to service. However, Plaintiff has not refuted 13 defendants’ evidence that defendant Fields was not properly served because service was accepted 14 by the litigation coordinator who was not authorized to accept service defendant Fields. Plaintiff has 15 not met his burden of proving that defendant Fields was properly served with the summons or agreed 16 to waive service. Therefore, Plaintiff is not entitled to entry of default against defendant Fields. 17 With respect to Plaintiff’s arguments regarding the authority of the Attorney General’s Office 18 and the handling of information by Counsel and the litigation coordinator, Plaintiff may not raise 19 new issues in his reply to defendants’ opposition to the motion for default. The Court shall not 20 consider such arguments without an opportunity for opposition by defendants. 21 III. 22 MOTION TO QUASH AND REQUEST TO SET ASIDE FINDING Defendants bring a motion to quash service of the summons upon defendant Fields. 23 Defendants also request the Court to set aside the Court’s finding, in the Findings and 24 Recommendations entered on July 12, 2011, that defendant Fields was served with process. 25 If service of process is found to be insufficient, the district court has discretion to dismiss an 26 action or to quash service. Fed. R. Civ. P. 4; S. J. V. Issaquah School Dist. No. 411, 470 F.3d 1288, 27 1293 (9th Cir. 2006); Thomas v. Furness Pac. Ltd., 171 F.2d 434, 435 (9th Cir. 1949) (where 28 4 1 undisputed proof shows that the person on whom process was served was not an officer, agent or 2 general manager of defendant, and was not authorized to receive service of process issued against 3 such defendant, a motion to quash service of summons was properly granted.) A defendant's 4 affirmative actions, which frustrate service, may constitute good cause for failure to effect timely 5 service, especially where the plaintiff is proceeding pro se. Williams-Guice v. Board of Educ., 45 6 F.3d 161, 164 (7th Cir.1995); McGuckin v. Smith, 974 F.2d 1050, 1058 (9th Cir.1992), overruled 7 on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1135 (9th Cir.1997). 8 Based on defendants’ undisputed evidence that defendant Fields was not properly served 9 because the litigation coordinator was not authorized to accept service on behalf of defendant Fields, 10 as discussed above, defendants’ motion to quash shall be granted, and the Court shall set aside its 11 finding that defendant Fields was served with process. Good cause appearing, Plaintiff shall be 12 granted additional time to effect service upon defendant Fields. 13 IV. CONCLUSION 14 Based on the foregoing, IT IS HEREBY ORDERED that: 15 1. Plaintiff’s request for entry of default against defendant Fields is DENIED; 16 2. Defendants’ motion to quash service upon defendant Fields is GRANTED; 17 3. The Court’s finding that defendant Fields was served with process, written in the 18 19 findings and recommendations of July 12, 2011, is SET ASIDE; and 4. 20 Good cause appearing, Plaintiff is GRANTED additional time to effect service upon defendant Fields. 21 22 23 IT IS SO ORDERED. Dated: 6i0kij September 28, 2011 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 5

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