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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICHARD S. KINDRED,

1:08-cv-01321-AWI-GSA-PC

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Plaintiff,

ORDER DENYING PLAINTIFF’S
REQUEST FOR ENTRY OF DEFAULT
AGAINST DEFENDANT FIELDS
(Doc. 26.)

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v.
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CALIFORNIA DEPARTMENT OF
MENTAL HEALTH, et al.,

ORDER GRANTING DEFENDANTS’
MOTION TO QUASH SERVICE
(Doc. 28.)

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Defendants.
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ORDER SETTING ASIDE FINDING THAT
DEFENDANT FIELDS WAS SERVED WITH
PROCESS

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ORDER GRANTING PLAINTIFF
ADDITIONAL TIME TO EFFECT SERVICE
UPON DEFENDANT FIELDS

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I.

BACKGROUND

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Richard S. Kindred (“Plaintiff”), a civil detainee presently detained at Coalinga State

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Hospital (“CSH”), is proceeding pro se and in forma pauperis in this civil rights action pursuant to

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42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on September 5, 2008.

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(Doc. 1.) This action now proceeds on Plaintiff’s original Complaint against defendants Barbara

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Devine1 and Linda Fields,2 for the violation of Plaintiff’s rights to freely exercise his religion under

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the First Amendment.3 Id.

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On July 12, 2011, the Court found that “[d]efendant Linda Fields was served with process

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on April 6, 2011, but has not appeared in this action.” (Findings and Recommendations, Doc. 25

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at 1, fn.2.) On July 15, 2011, Plaintiff filed a request for entry of default against defendant Fields.

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(Doc. 26.) On August 5, 2011, defendants Devine and Ahlin filed an opposition to Plaintiff’s

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request.4 (Doc. 27.) On August 10, 2011, defendants Devine and Ahlin filed a motion to quash

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service of the summons upon defendant Fields, and requested the Magistrate Judge to set aside the

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finding that defendant Fields was served with the complaint. (Doc. 28.) On August 15, 2011,

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Plaintiff filed a reply to defendants’ opposition to the request for entry of default. (Doc. 29.)

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Plaintiff’s request for entry of default, defendants’ motion to quash, and defendants’ request

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for the Court to set aside its finding are now before the Court.

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II.

REQUEST FOR ENTRY OF DEFAULT

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Entry of default is appropriate as to any party against whom a judgment for affirmative relief

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is sought that has failed to plead or otherwise defend as provided by the Federal Rules of Civil

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Procedure and where that failure is shown by affidavit or otherwise. See Fed. R. Civ. P. 55(a). Rule

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12 of the Federal Rules of Civil Procedure provides, “[A] defendant must serve an answer within

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21 days after being served with the summons and complaint; or if it has timely waived service under

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Rule 4(d), within 60 days after the request for a waiver was sent.” Fed. R. Civ. P. 12(a)(1)(A).

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Under Rule 4(d), a defendant may waive service of a summons by signing and returning a waiver

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of service. Fed. R. Civ. P. 4(d).

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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.
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Defendant Linda Fields has not appeared in this action.

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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.)
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Defendant Ahlin was dismissed from this action on September 12, 2011. Id.

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Before a default will be entered, the court clerk must be satisfied from Plaintiff’s request and

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accompanying documentation that (1) defendant has been served with the summons (or has agreed

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to waive service); (2) the time allowed by law for responding has expired; (3) defendant has failed

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to file a pleading or motion permitted by law; and (4) defendant is neither a minor nor an

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incompetent person. Fed. R. Civ. P. 55(b)(1); see First American Bank, N.A. v. United Equity Corp.

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89 F.R.D. 81, 86 (D.C.D.C. 1981).

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Plaintiff argues that default should be entered against defendant Fields because defendant

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Fields has not responded to the complaint as required by Federal Rule of Civil Procedure 12(a), and

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counsel for defendants does not represent defendant Fields in this action.

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In opposition, defendants argue that defendant Fields was not properly served. Defendants

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acknowledge that the Marshal served the complaint on defendant Fields by leaving it with Melica

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Villalobos, litigation coordinator for CSH, on April 6, 2011. However, defendants provide evidence

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that the litigation coordinator was not authorized to accept service for defendant Fields. The

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litigation coordinator was only authorized to accept service for current employees of CSH, and she

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erroneously accepted service for defendant Fields, who has not been employed by CSH since April

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30, 2009. (Declaration of Melica Villalobos, Doc. 27-2 at ¶¶2-5.) Moreover, counsel for defendants,

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Deputy California Attorney General (“DAG”) Lisa A. Tillman (“Counsel”), does not have any means

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of contacting defendant Fields to obtain authorization to represent her. (Declaration of Lisa Tillman,

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Doc. 27-1.) Counsel sent a letter to defendant Fields at Fields’ last known address, but the mail was

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returned unopened with a postal service notation on the envelope that she had moved and left no

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forwarding address. Id. Defendants request the Court to quash the service and set aside the Court’s

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finding that defendant Fields has been served.

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In reply, Plaintiff argues that the Attorney General’s Office lacks authority to oppose the

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motion for default because the Attorney General does not represent defendant Fields. Plaintiff

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requests the Court to direct the Marshal to take legal action against DAG Lisa Tillman and Melica

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Villalobos for withholding information concerning defendant Fields, and to notify the American Bar

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Association. Plaintiff also requests the Court to remove the Attorney General as counsel for

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defendants Ahlin and Devine, arguing that a conflict of interest exists because the Attorney General

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is obligated to prosecute offenders of state laws and defend those same offenders at the same time.

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Plaintiff relies on the court record in his assertion that defendant Fields has not replied to the

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complaint in accordance with Rule 12(a). The return of service filed by the United States Marshal

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(“Marshal”) shows that on September 23, 2010, the Marshal sent a Waiver of Service form on behalf

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of Plaintiff to defendant Fields. (See Doc. 24.) By March 14, 2011, the Waiver of Service form had

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not been returned by defendant Fields. Id. On April 6, 2011, the Marshal personally served

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defendant Fields at CSH via Litigation Coordinator Melica Villalobos. Id. On April 14, 2011, the

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Marshal filed the return of service with the Court. (Doc. 24.) To date, defendant Fields has not

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appeared in this action. (Court Record.) Therefore, more than twenty-one days have passed since

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the April 6, 2011 date of personal service reported by the Marshal, exceeding the time allowed Rule

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12, indicating that defendant Fields failed to respond to service. However, Plaintiff has not refuted

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defendants’ evidence that defendant Fields was not properly served because service was accepted

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by the litigation coordinator who was not authorized to accept service defendant Fields. Plaintiff has

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not met his burden of proving that defendant Fields was properly served with the summons or agreed

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to waive service. Therefore, Plaintiff is not entitled to entry of default against defendant Fields.

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With respect to Plaintiff’s arguments regarding the authority of the Attorney General’s Office

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and the handling of information by Counsel and the litigation coordinator, Plaintiff may not raise

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new issues in his reply to defendants’ opposition to the motion for default. The Court shall not

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consider such arguments without an opportunity for opposition by defendants.

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III.

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MOTION TO QUASH AND REQUEST TO SET ASIDE FINDING
Defendants bring a motion to quash service of the summons upon defendant Fields.

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Defendants also request the Court to set aside the Court’s finding, in the Findings and

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Recommendations entered on July 12, 2011, that defendant Fields was served with process.

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If service of process is found to be insufficient, the district court has discretion to dismiss an

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action or to quash service. Fed. R. Civ. P. 4; S. J. V. Issaquah School Dist. No. 411, 470 F.3d 1288,

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1293 (9th Cir. 2006); Thomas v. Furness Pac. Ltd., 171 F.2d 434, 435 (9th Cir. 1949) (where

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undisputed proof shows that the person on whom process was served was not an officer, agent or

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general manager of defendant, and was not authorized to receive service of process issued against

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such defendant, a motion to quash service of summons was properly granted.) A defendant's

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affirmative actions, which frustrate service, may constitute good cause for failure to effect timely

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service, especially where the plaintiff is proceeding pro se. Williams-Guice v. Board of Educ., 45

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F.3d 161, 164 (7th Cir.1995); McGuckin v. Smith, 974 F.2d 1050, 1058 (9th Cir.1992), overruled

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on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1135 (9th Cir.1997).

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Based on defendants’ undisputed evidence that defendant Fields was not properly served

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because the litigation coordinator was not authorized to accept service on behalf of defendant Fields,

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as discussed above, defendants’ motion to quash shall be granted, and the Court shall set aside its

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finding that defendant Fields was served with process. Good cause appearing, Plaintiff shall be

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granted additional time to effect service upon defendant Fields.

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IV.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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Plaintiff’s request for entry of default against defendant Fields is DENIED;

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Defendants’ motion to quash service upon defendant Fields is GRANTED;

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3.

The Court’s finding that defendant Fields was served with process, written in the

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findings and recommendations of July 12, 2011, is SET ASIDE; and
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Good cause appearing, Plaintiff is GRANTED additional time to effect service upon
defendant Fields.

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IT IS SO ORDERED.
Dated:
6i0kij

September 28, 2011

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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