Heredia v. Lawrence et al

Filing 32

ORDER Extending Time for Service; RENEWED ORDER for Service by Marshal. The Court directs the Clerk to issue a new summons as to Plaintiff's Complaint (ECF No. 1 ). In addition, the Clerk will provide Plaintiff with a certified copy of this Ord er, a certified copy of his Complaint, and the summons so that he may serve them upon Defendants. The Court orders the U.S. Marshal to again serve a copy of the Complaint and summons upon Defendants. Signed by Chief Judge Larry Alan Burns on 2/27/2019.(All non-registered users served via U.S. Mail Service) (Certified Copy to USM) (jdt)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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AMANDO VILLARREAL HEREDIA,
Plaintiff,

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CASE NO. 17cv1560-LAB (LL)

vs.
LAWRENCE, et al.,
Defendants.

ORDER EXTENDING TIME FOR
SERVICE;
RENEWED ORDER FOR SERVICE BY
MARSHAL

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After a year of unsuccessful efforts by Plaintiff Amando Heredia to properly serve

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the various defendants, on October 29, 2018 this Court granted Heredia, an inmate

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currently incarcerated at the Federal Correctional Institution in Safford, Arizona, limited-

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purpose IFP status so that he could take advantage of service by the United States

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Marshals Service (“USMS”). Heredia completed and returned to the USMS a Form USM-

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285 for each defendant, and each form listed the defendant’s address as the Otay Mesa

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Detention Center in San Diego. The USMS attempted to serve each of the defendants

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twice at this location, once by mail and once in person. Each of the summons were

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returned unexecuted by the USMS because defendants are apparently no longer

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employed at Otay Mesa. Dkt. 28-31.

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As the Court has emphasized throughout this case, it is Heredia’s responsibility to

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provide the correct names and addresses for each of the defendants. While the USMS

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will attempt to serve individuals at the location Heredia specifies, the USMS cannot itself

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track down the individuals named in the complaint. The Court understands that locating

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defendants is a difficult task for an incarcerated plaintiff like Heredia, and therefore finds

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that good cause exists to extend the time for service under FRCP 4(m). See Walker v.

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Sumner, 14 F.3d 1415, 1422 (9th Cir.1994). But this case has been pending for 18

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months and no defendant has yet been served, so this is the last chance. The Court will

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direct the clerk to send Heredia a renewed Form 285 for each defendant. Heredia must

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complete and return these forms to the USMS within 14 days of receiving them. He

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must identify the full name and current address of each defendant. If the USMS is

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still unable to complete service based on the information provided, this case will

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be dismissed without prejudice. See Ponce v. Gale, 2014 WL 7381735, at *5 (C.D.

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Cal. 2014) (“If service cannot be accomplished due to the pro se plaintiff's ‘neglect’ or

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‘fault,’ including the plaintiff's failure to provide sufficient information to identify or locate

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the defendant, dismissal is appropriate.”).

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Accordingly, the Court:

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1.

DIRECTS the Clerk to issue a new summons as to Plaintiff’s Complaint

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(ECF No. 1) upon Defendants C. BURNS, LAWRENCE, J. WILLIAMS, and E.

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LEDERMAN and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each

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Defendant. In addition, the Clerk will provide Plaintiff with a certified copy of this Order,

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a certified copy of his Complaint, and the summons so that he may serve them upon

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Defendants C. BURNS, LAWRENCE, J. WILLIAMS, and E. LEDERMAN. Upon receipt

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of this “IFP Package,” Plaintiff must complete the Form 285s as completely and accurately

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as possible, include a current address where each defendant may be served, follow the

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instructions the Clerk provides in the letter accompanying his IFP package, and return

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the forms to the USMS within 14 days of receipt.

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2.

ORDERS the U.S. Marshal to again serve a copy of the Complaint and

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summons upon Defendants C. BURNS, LAWRENCE, J. WILLIAMS, and E. LEDERMAN

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as directed by Plaintiff on the USM Form 285s provided to him. All costs of that service

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will be advanced by the United States. See 28 U.S.C. § 1915(d); FED. R. CIV. P. 4(c)(3).

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The USMS shall attempt to serve the defendants within 14 days of receiving the

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forms from Heredia.

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3.

ORDERS Defendants C. BURNS, LAWRENCE, J. WILLIAMS, and E.

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LEDERMAN, once served, to reply to Plaintiff’s Complaint within the time provided by the

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applicable provisions of Federal Rule of Civil Procedure 12(a).

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§ 1997e(g)(2) (while Defendants may occasionally be permitted to “waive the right to reply

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to any action brought by a prisoner confined in any jail, prison, or other correctional facility

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under section 1983,” once the Court has conducted its sua sponte screening pursuant to

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28 U.S.C. § 1915A(b), and thus, has made a preliminary determination based on the face

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on the pleading alone that Plaintiff has a “reasonable opportunity to prevail on the merits,”

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Defendants are required to respond).

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See 42 U.S.C.

ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to

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serve upon Defendants C. BURNS, LAWRENCE, J. WILLIAMS, and E. LEDERMAN, or,

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if appearance has been entered by counsel, upon Defendants’ counsel, a copy of every

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further pleading, motion, or other document submitted for the Court’s consideration

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pursuant to FED. R. CIV. P. 5(b). Plaintiff must include with every original document he

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seeks to file with the Clerk of the Court, a certificate stating the manner in which a true

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and correct copy of that document has been was served on Defendants or their counsel,

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and the date of that service. See S.D. CAL. CIVLR 5.2. Any document received by the

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Court which has not been properly filed with the Clerk, or which fails to include a

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Certificate of Service upon the Defendants, may be disregarded.

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IT IS SO ORDERED.
Dated: February 27, 2019
HONORABLE LARRY ALAN BURNS
Chief United States District Judge

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