Carson v. Martinez et al

Filing 17

ORDER (1) granting 16 Plaintiff's Motion for Discovery and (2) Sua Sponte granting Plaintiff an Extension of Time to Serve Defendant Nevarez Pursuant to Fed. R. Civ. P 4(m). Signed by Magistrate Judge Barbara Lynn Major on 12/1/2016. (All non-registered users served via U.S. Mail Service) (Certified Copy to USM)(IFP Package sent to Office of the Att. Gen.)(kcm)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 16cv1736-JLS (BLM) DAVID VINCENT CARSON, ORDER Plaintiff, 12 13 v. 14 F. MARTINEZ, et al., 15 (1) GRANTING PLAINTIFF'S MOTION FOR DISCOVERY [ECF No. 16] AND Defendants. 16 (2) SUA SPONTE GRANTING PLAINTIFF AN EXTENSION OF TIME TO SERVE DEFENDANT NEVAREZ PURSUANT TO FED. R. CIV. P 4(m) 17 18 19 20 On November 21, 2016, David Vincent Carson (“Plaintiff”), a state prisoner currently 21 incarcerated at the Correctional Training Facility Center in Soledad, California, and proceeding 22 pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. ECF No. 1 (“Comp.”). Plaintiff 23 alleges that fourteen named and unidentified correctional, medical, and inmate appeals officials 24 at Richard J. Donovan Correctional Facility (“RJD”) violated his First, Eighth, and Fourteenth 25 Amendment rights while he was incarcerated there in 2013 and 2014. Id. at 4-13. On August 26 15, 2016, the Court granted Plaintiff’s Motion to Proceed in forma pauperis (“IFP”), found all 27 claims but those against three named Defendants sufficient to survive the initial screening, and 28 directed the United States Marshal Service (“USMS”) to effect service on Plaintiff’s behalf 1 16cv1736-JLS (BLM) 1 pursuant to 28 U.S.C. § 1915(d) and Fed. R. Civ. P. 4(c)(3). ECF No. 3. 2 On August 15, 2016, the Clerk issued a summons and prepared an “IFP package” 3 including certified copies of Plaintiff’s Complaint, a U.S. Marshal Form 285 (“USMS Form 285”) 4 for each Defendant named in the Complaint, and a copy of the Court’s order granting Plaintiff 5 leave to proceed IFP. ECF Nos. 3, 4. Service upon Defendants Godinez, Silva, Casian, Arguilez, 6 Bracamonte, Garcia, Seibel, Larocco, and Martinez was executed by the USMS and waivers of 7 personal service were filed on their behalf. ECF Nos. 6-14. However, a summons was returned 8 unexecuted as to Defendant Nevarez. ECF No. 5; see also ECF No. 16, Exh. A. The USMS 9 notified Plaintiff that it was unable to execute service upon Defendant Nevarez at RJD because 10 Defendant Nevarez is not employed at RJD. ECF No. 16, Exh. A. 11 On November 21, 2016, Plaintiff signed a “Notice and Motion for Discovery Points and 12 Authorities,” which the Court accepted on discrepancy on November 30, 2016. ECF Nos. 15, 13 16. Plaintiff argues that because he is a prisoner and because Defendant Nevarez was not 14 employed at RJD when USMS attempted to execute service of summons, he “has no other 15 reasonable recourse other than to implore this honorable court to order the Attorney General 16 [or the Litigation Coordinator] to furnish the [USMS] with [Defendant Nevarez’s] address 17 information” so that he may be served. ECF No. 16 at 2. The Court construes this as a 18 confidential address request. 19 I. Fed. R. Civ. P. 4 Service Rules 20 Rule 4 of the Federal Rules of Civil Procedure provides that: 21 [i]f a defendant is not served within 90 days after the complaint is filed, the courton 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 shall extend time for service for an appropriate period. 22 23 24 25 Fed. R. Civ. P. 4(m). 26 In cases involving a plaintiff proceeding IFP, a United States Marshal, upon order of the 27 court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3); 28 U.S.C. § 1915(d) 28 (in IFP proceedings, “[t]he officers of the court shall issue and serve all process, and perform 2 16cv1736-JLS (BLM) 1 all duties in such cases.”). “‘An incarcerated pro se plaintiff proceeding in forma pauperis is 2 entitled to rely on the U.S. Marshal for service of the summons and complaint and . . . should 3 not be penalized by having his action dismissed for failure to effect service where the U.S. 4 Marshal or court clerk has failed to perform his duties.’” Walker v. Sumner, 14 F.3d 1415, 1422 5 (9th Cir. 1994) (quoting Puett v. Blandford, 912 F.2d 270, 273 (9th Cir. 1990), abrogated on 6 other grounds by Sandin v. Conner, 515 U.S. 472 (1995)). “So long as the prisoner has furnished 7 the information necessary to identify the defendant, the marshal’s failure to effect service is 8 ‘automatically good cause . . . .’” Walker, 14 F.3d at 1422 (quoting Sellers v. United States, 902 9 F.2d 598, 603 (7th Cir. 1990)). However, where a pro se plaintiff fails to provide the Marshal 10 with accurate and sufficient information to effect service of the summons and complaint, the 11 court’s sua sponte dismissal of any unserved defendants is appropriate. Walker, 14 F.3d at 12 1421-22; see also Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987) (noting that plaintiff 13 “may not remain silent and do nothing to effectuate service”; rather, “[a]t a minimum, a plaintiff 14 should request service upon the appropriate defendant and attempt to remedy any apparent 15 defects of which [he] has knowledge.”). 16 Here, the Court finds Plaintiff has provided information “necessary to sufficiently identify” 17 Defendant Nevarez as a Correctional Officer at RJD when the alleged claims occurred. See 18 Comp. at 9, 14, 15. 19 attempted to effect service upon Defendant Nevarez at RJD, his last known place of 20 employment, but to no avail. ECF No. 5. 21 Plaintiff has provided this information to the USMS and already has The Court finds that Plaintiff should not be penalized with dismissal as to Defendant 22 Nevarez simply because Nevarez no longer is employed at RJD. 23 Defendant Nevarez’s forwarding address can be easily ascertained by reference to the CDCR’s 24 personnel records, Plaintiff is entitled to rely on the U.S. Marshal to effect service upon 25 Defendant Nevarez on his behalf. See Puett, 912 F.2d at 275. The Court hereby directs the 26 Deputy Attorney General assigned to this case to contact the Litigation Coordinator at RJD 27 and/or the CDCR’s Legal Affairs Division and obtain Defendant Nevarez’s current address from 28 RJD’s or the CDCR’s records. The Deputy Attorney General should then forward that address to 3 Accordingly, as long as 16cv1736-JLS (BLM) 1 the USMS in a confidential memorandum.1 The USMS must effectuate service using the new 2 address without additional paperwork from Plaintiff. 3 II. Conclusion and Order 4 Accordingly, the Court hereby: 5 1) GRANTS Plaintiff’s motion for discovery [ECF No. 16] and ORDERS the Deputy 6 Attorney General assigned to this case2 to provide the forwarding address to the U.S. Marshal 7 in a confidential memorandum stating that the summons and complaint are to be delivered to 8 the address provided. The Attorney General’s Office must provide the U.S. Marshal with any 9 such information by December 21, 2016. If the Attorney General cannot locate the address 10 for Defendant Nevarez, he must file a declaration by that same date stating such, and explain 11 why the address could not be provided. 12 Within 30 days of receipt of any available address from the Attorney General, the Court 13 ORDERS the U.S. Marshal to serve a copy of Plaintiff’s complaint and summons on Defendant 14 Nevarez. All costs of service shall be advanced by the United States Pursuant to the Court’s 15 August 15, 2016 Order granting Plaintiff leave to proceed IFP and directing service pursuant to 16 28 U.S.C. § 1915(d) and Fed. R. Civ. P. 4(c)(2). ECF No. 3; and 17 18 2) GRANTS Plaintiff an extension of time in which to file service upon Defendant Nevarez pursuant to Fed. R. Civ. P. 4(m).3 Although Plaintiff does not expressly seek a Rule 19 20 21 22 23 24 25 26 27 28 In Graham v. Satkoski, 51 F.3d 710 (7th Cir. 1995), the Seventh Circuit specifically noted that “prisoners often get the ‘runaround’ when they attempt to obtain information through governmental channels and [encounter] needless attendant delays in litigating a case [as a] result.” Graham, 713 F.3d at 713. However, while a “state prison 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 information to a federal law enforcement agency.” Id. 2 No Deputy Attorney General has yet formally appeared in this case, so there is no attorney name provided on the docket to receive service. But, some Defendants have filed waivers of service. Those waivers are signed by John P. Walters of the Office of the Attorney General. ECF Nos. 6-14. Additionally, Plaintiff attached a letter from Mr. Walters to the instant motion, which explains that the Office of the Attorney General represents the served defendants in this case. ECF No. 16, Exh. B. The Court therefore ORDERS that a copy of this order be served on Mr. Walters. 3 See Mann v. American Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003) (holding that district court 1 4 16cv1736-JLS (BLM) 1 2 4(m) extension, good cause exists warranting a short extension. See Walker, 14 F.3d at 1422. 3) IT IS FURTHER ORDERED that the Clerk provide the Attorney General’s Office 3 an “IFP Package” consisting of: (1) this Order; (2) a copy of the Court’s August 15, 2016 Order 4 Granting IFP and Directing U.S. Marshal Service [ECF No. 3]; (3) a certified copy of his Complaint 5 [ECF No. 1]; (4) an alias summons; and (5) a blank USMS Form 285 for purposes of re- 6 attempting service upon Defendant Nevarez. Both the Attorney General’s Office and the Office 7 of the U.S. Marshal, however, are ORDERED to keep the address provided strictly confidential. 8 Thus, the address may not appear on any U.S. Marshal Form 285, may not be provided to 9 Plaintiff, and may not be made part of the Court’s record. 10 IT IS SO ORDERED. 11 12 Dated: 12/1/2016 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 may, under the broad discretion granted by Fed. R. Civ. P. 4(m), extend time for service retroactively after the service period has expired). 5 16cv1736-JLS (BLM)

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