Avery v. Allamby et al

Filing 16

ORDER: (1) Granting Plaintiff's Motion for US Marshal Service Upon Defendant Clarke; (2) Directing Deputy Attorney General to Provide Defendant Clarke's Forwarding Address in Confidential Memo to US Marshal in Order to Effect Service Pursu ant to 28 USC § 1915(d) and FED.R.CIV.P. 4(c)(3); (3) Granting Plaintiff Extension of Time to Effect Service Upon Defendant Clarke Pursuant to FED.R.CIV.P. 4(m). Signed by Judge Barry Ted Moskowitz on 2/17/2015. (All non-registered users served via U.S. Mail Service) (Certified Copy to USM) (rlu)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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KYLE AVERY,
CDCR #E-67897,

Civil No.
Plaintiff,

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vs.

(2) DIRECTING DEPUTY
ATTORNEY GENERAL TO
PROVIDE DEFENDANT
CLARKE’S FORWARDING
ADDRESS IN CONFIDENTIAL
MEMO TO U.S. MARSHAL IN
ORDER TO EFFECT SERVICE
PURSUANT TO 28 U.S.C. § 1915(d)
AND FED.R.CIV.P. 4(c)(3)

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A. ALLAMBY, Lieutenant;
V. CANADA, Lieutenant;
J. N. CLARKE, Lieutenant,

AND

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ORDER:
1) GRANTING PLAINTIFF’S
MOTION FOR U.S. MARSHAL
SERVICE UPON DEFENDANT
CLARKE
(Doc. No. 15)

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Defendants.

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(3) GRANTING PLAINTIFF
EXTENSION OF TIME TO
EFFECT SERVICE UPON
DEFENDANT CLARKE
PURSUANT TO
FED.R.CIV.P. 4(m)

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Kyle Avery (“Plaintiff”), is currently incarcerated at Richard J. Donovan

27 Correctional Facility (“RJD”), and proceeding in pro se and in forma pauperis in this
28 civil action filed pursuant to 42 U.S.C. § 1983.
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1 I.

Procedural Background

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On November 10, 2014, the Honorable John A. Houston screened Plaintiff’s First

3 Amended Complaint (“FAC”) (Doc. No. 5), and dismissed Defendants Ruffino, Benyard,
4 and Paramo as parties pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b)(1).1 See Nov.
5 10, 2014 Order (Doc. No. 6). At the same time, however, Judge Houston directed the
6 U.S. Marshal to effect service of a summons and Plaintiff’s FAC upon Defendants
7 Allamby, Canada, and Clarke pursuant to 28 U.S.C. § 1915(d) and FED.R.CIV.P. 4(c)(3).
8 Id.
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On November 12, 2014, the Clerk issued the summons on Plaintiff’s FAC, and

10 forwarded an “IFP package” to him, which included certified copies of his FAC, a U.S.
11 Marshal Form 285 (“USM Form 285”) for Defendants Allamby, Canada, and Clarke, and
12 a copy of the Court’s July 11, 2014 Order (Doc. No. 4) granting him leave to proceed
13 IFP. See Doc. No. 7; Puett v. Blandford, 895 F.2d 630, 634 (9th Cir. 1990) (“An
14 incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S.
15 Marshal for service of summons and complaint”).
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On December 30, 2014, the U.S. Marshal returned Plaintiff’s USM Form 285

17 unexecuted as to Defendant J. N. Clarke, with a notation indicating that per the
18 Litigation Coordinator at RJD, where Plaintiff indicated on his USM Form 285 that Lt.
19 Clarke could be served: “Defendant is retired. No forwarding address provided.” See
20 Doc. No. 8. Waivers of personal service upon the remaining two Defendants (Canada
21 and Allamby) were subsequently filed on January 20, 2015 (Doc. Nos. 9, 10), and those
22 Defendants have filed an Answer (Doc. No. 11).
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Plaintiff’s Motion

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On January 28, 2015, Plaintiff filed a Motion for Service upon Defendant Clarke

25 (Doc. No. 15). Plaintiff requests that this Court issue an Order directing the Deputy
26 Attorney General representing Defendants Canada and Allamby to ascertain Defendant
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On February 6, 2015, the case was transferred to this Court’s docket as related
28 to Avery v. Paramo, et al., S.D. Cal. Civil Case No. 13cv2261 BTM (DHB), pursuant to
the “Low Number Rule,” S.D. CAL. CIVLR 40.1 (Doc. No. 13).
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1 Clarke’s forwarding address and to provide it to the U.S. Marshal in a confidential
2 manner so that he can be served. See Pl.’s Mot. (Doc. No. 15) at 1-3.
3 III.

FED.R.CIV.P. 4 Service Rules

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Rule 4 of the Federal Rules of Civil Procedure provides that:

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[i]f 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 the 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.

9 FED.R.CIV.P. 4(m).
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In cases involving a plaintiff proceeding IFP, a United States Marshal, upon order
11 of the court, serves the summons and the complaint. FED.R.CIV.P. 4(c)(3) (providing for
12 service by a United States marshal or deputy marshal “if the plaintiff is authorized to
13 proceed in forma pauperis under 28 U.S.C § 1915.”); 28 U.S.C. § 1915(d) (“The officers
14 of the court shall issue and serve all process, and perform all duties in [IFP] cases.”).
15 “‘[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the
16 U.S. Marshal for service of the summons and complaint and . . . should not be penalized
17 by having his action dismissed for failure to effect service where the U.S. Marshal or the
18 court clerk has failed to perform his duties.’” Walker v. Sumner, 14 F.3d 1415, 1422 (9th
19 Cir. 1994) (quoting Puett, 912 F.2d at 275), abrogated on other grounds by Sandin v.
20 Conner, 515 U.S. 472 (1995). “So long as the prisoner has furnished the information
21 necessary to identify the defendant, the marshal’s failure to effect service is
22 ‘automatically good cause.’” Walker, 14 F.3d at 1422 (quoting Sellers v. United States,
23 902 F.2d 598, 603 (7th Cir. 1990)). However, where a pro se plaintiff fails to provide
24 the Marshal with accurate and sufficient information to effect service of the summons
25 and complaint, the court’s sua sponte dismissal of the unserved defendants is
26 appropriate. Walker, 14 F.3d at 1421-22; see also Rochon v. Dawson, 828 F.2d 1107,
27 1110 (5th Cir. 1987) (noting that plaintiff “may not remain silent and do nothing to
28 effectuate such service”; rather, “[a]t a minimum, a plaintiff should request service upon
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1 the appropriate defendant and attempt to remedy any apparent defects of which [he] has
2 knowledge.”).
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The Court enjoys broad discretion under Rule 4(m) to extend time for service even

4 without a showing of good cause. In re Sheehan, 253 F.3d 507, 513 (9th Cir. 2001);
5 Mann v. American Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003) (holding that district
6 court may, under the broad discretion granted by FED.R.CIV.P. 4(m), extend time for
7 service retroactively after the 120-day service period has expired).
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Here, the Court finds Plaintiff has provided information “necessary to sufficiently

9 identify” J. N. Clarke, whom he identifies as a Correctional Lieutenant employed at RJD
10 at the time his cause of action accrued against him in August 2013. Walker, 14 F.3d at
11 1422. See also Pl.’s FAC (Doc. No. 5 at 5; Doc. No. 8). The only reason the U.S.
12 Marshal was unable to effect service upon Clarke at RJD however, is due to Clarke’s
13 retirement, and the presumably confidential nature of his forwarding address. Thus, as
14 long as the privacy of Defendant Clarke’s forwarding address can be preserved, Plaintiff
15 is entitled to rely on the U.S. Marshal to effect service upon Clarke on his behalf. See
16 Puett, 912 F.2d at 275. The Court will direct the Deputy Attorney General assigned to
17 this case to contact the Litigation Coordinator at RJD, and to ask him or her to provide
18 any forwarding address in his or her possession, or which is obtainable from the CDCR’s
19 personnel records for Defendant Lt. J. N. Clarke, now retired, and to forward that address
20 to the U.S. Marshal in a confidential memorandum indicating that the summons and
21 Plaintiff’s FAC is to be served upon Clarke at that address.2
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Pursuant to this confidential service Order, Defendant Clarke’s address shall not
26 appear on any U.S. Marshal Form 285, shall not be made accessible to Plaintiff under
any circumstances, and shall not be made part of the Court’s record. While a “state
27 prison official may be justifiably reluctant to provide employee addresses to a prisoner
. . . due to security concerns, it can hardly claim the same reluctance in providing the
28 information to a federal law enforcement agency.” Graham v. Satkoski, 51 F.3d 710, 713
(7th Cir. 1995).
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1 IV.

Conclusion and Order

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Accordingly, the Court hereby:

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1)

GRANTS Plaintiff’s Motion for U.S. Marshal Service upon Defendant

4 Clarke (Doc. No. 15).
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2)

ORDERS the Deputy Attorney General assigned to this case to determine

6 from the Litigation Coordinator at RJD if a forwarding address exists in his or her
7 records, or is easily obtainable from the CDCR’s personnel records, for Defendant Lt.
8 J. N. Clarke, now retired, and to provide it to the U.S. Marshal in a confidential
9 memorandum indicating that the summons and Plaintiff’s FAC (Doc. Nos. 5, 7) are to
10 be served upon Lt. Clarke at that address.
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3)

ORDERS the U.S. Marshal, pursuant to FED.R.CIV.P. 4(c)(3), (m) and 28

12 U.S.C. § 1915(d), to within 30 days of receiving Defendant Clarke’s confidential
13 forwarding address, effect service of Plaintiff’s FAC (Doc. No. 5) and summons (Doc.
14 No. 7) upon Defendant Clarke. All costs of service will be advanced by the United
15 States pursuant to the Court’s July 11, 2014 and November 10, 2014 Orders granting
16 Plaintiff leave to proceed IFP and directing service pursuant to 28 U.S.C. § 1915(d) and
17 FED.R.CIV.P. 4(c)(3) (Doc. Nos. 4, 6).
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IT IS SO ORDERED.

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BARRY TED MOSKOWITZ, Chief Judge
United States District Court

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