Emilio v. Nebraska Department of Correctional Services et al

Filing 36

MEMORANDUM AND ORDER - Plaintiff's Discovery Motions (filing nos. 30 and 32 ) are denied. Plaintiff's Motion for Summons (filing no. 31 ) is granted in accordance with this Memorandum and Order. Plaintiff's Motions for Service (f iling nos. 34 and 35 ) are denied because his Summons and USM-285 forms contain insufficient information. Plaintiff's Motion for Enlargement of Time (filing no. 33 ) is granted. Plaintiff shall have until May 14, 2014, to complete service of process. To obtain service of process on Defendants, Plaintiff must complete and return the summons forms that the Clerk of the court will provide. The Clerk of the court shall send FOUR (4) summons forms and FOUR (4) USM-285 forms (for servi ce on Defendants in their individual and official capacities) to Plaintiff together with a copy of this Memorandum and Order. Plaintiff shall, as soon as possible, complete the forms and send the completed forms back to the Clerk of the court. In the absence of the forms, service of process cannot occur. Upon receipt of the completed forms, the Clerk of the court will sign the summons forms, to be forwarded with a copy of the Complaint to the U.S. Marshal for service of process. The Marsh al shall serve the summons and Complaint without payment of costs or fees. Service may be by certified mail pursuant to Fed. R. Civ. P. 4 and Nebraska law in the discretion of the Marshal. The Clerk of the court will copy the Complaint, and Plaintif f does not need to do so. Plaintiff is hereby notified that failure to obtain service of process on a defendant by May14, 2014, may result in dismissal of this matter as to such defendant without further notice. A defendant has twenty-one (21) day s after receipt of the summons to answer or otherwise respond to a complaint. The Clerk of the Court is directed to set a pro se case management deadline in this case with the following text: "May 14, 2014: Check for service of summons." Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party with forms)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PAVON EMILIO,
Plaintiff,
v.
NEBRASKA DEPARTMENT OF
CORRECTIONAL SERVICES,
ROBERT P. HOUSTON, Director,
and FRED BRITTEN, Warden,
Defendants.

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4:13CV3073

MEMORANDUM
AND ORDER

This matter is before the court on several service of process-related motions
filed by Plaintiff. (See Filing Nos. 30, 31, 32, 33, 34 and 35.)
Two of Plaintiff’s pending Motions ask the court to permit him to conduct
discovery to identify Defendants’ full names and addresses. (Filing Nos. 30 and 32.)
However, Plaintiff appears to have this information. (See, e.g., Filing No. 28.)
Moreover, shortly after Plaintiff filed this action, the clerk’s office delivered to him
a copy of the court’s General Order Number 2007-12, which states that “[n]o
discovery in pro se civil cases assigned to a district judge shall take place until . . . a
progression order is entered unless permitted by the court.” (Filing No. 9 at CM/ECF
p. 1.) The court has not entered a progression order in this matter and Plaintiff has
provided no reason why early discovery should be allowed in this case. Accordingly,
the court will deny his discovery Motions.
Plaintiff has also filed a Motion for Summons (filing no. 31) and two Motions
for Service (filing nos. 34 and 35.) Because Plaintiff is proceeding in forma pauperis,
he is entitled to rely on the United States Marshals Service for service of process. See
Wright v. First Student, Inc., 710 F.3d 782, 783 (8th Cir. 2013). On three separate
occasions, the court has sent Plaintiff Summons and USM-285 forms to obtain service

on Defendants. (See Filing Nos. 24, 27, and 29.) Although Plaintiff has completed
the USM-285 forms, he has failed to complete the Summons forms. (See Filing Nos.
26, 28, and 35.) Indeed, Plaintiff has not provided the marshals with a name and
address in the “To:” section, or his address in the section providing that “[t]he answer
or motion must be served on the plaintiff or plaintiff’s attorney, whose name and
address are:” on the Summons forms. (Id.) The Clerk’s office cannot complete these
forms for Plaintiff and Plaintiff must complete these forms before service of process
can occur.1 On the court’s own motion, Plaintiff will have one more chance to
correctly fill out the forms. Accordingly, his Motion for Summons (filing no. 31) is
granted. Plaintiff’s Motions for Service (filing nos. 34 and 35) are denied.
Also pending is Plaintiff’s Motion for Enlargement of Time to effect service of
process. (Filing No. 33.) The court will grant the Motion, but warns Plaintiff that if
he fails to provide the proper information and complete service of process by May 14,
2014, his claims may be dismissed against any unserved Defendants without further
notice.
IT IS THEREFORE ORDERED that:
1.

Plaintiff’s Discovery Motions (filing nos. 30 and 32) are denied.

2.
Plaintiff’s Motion for Summons (filing no. 31) is granted in accordance
with this Memorandum and Order.

Plaintiff argues that he filled out the Summons and USM-285 forms in another
case (i.e. Case No. 4:13CV3088) and service of process occurred. (Filing No. 31.)
He asks the court to investigate how the same information can be sufficient in one
case, but not another. (Id.) In Case No. 4:13CV3088, the summons forms contain an
address in the “To:” section. (See Case No. 4:13CV3088, Filing No. 19.) In this
matter, the Summons forms are blank. (See Filing Nos. 26, 28, and 35.) Again, the
clerk’s office will not fill out this information for Plaintiff.
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3.
Plaintiff’s Motions for Service (filing nos. 34 and 35) are denied because
his Summons and USM-285 forms contain insufficient information.
4.
Plaintiff’s Motion for Enlargement of Time (filing no. 33) is granted.
Plaintiff shall have until May 14, 2014, to complete service of process.
5.
To obtain service of process on Defendants, Plaintiff must complete and
return the summons forms that the Clerk of the court will provide. The Clerk of the
court shall send FOUR (4) summons forms and FOUR (4) USM-285 forms (for
service on Defendants in their individual and official capacities) to Plaintiff together
with a copy of this Memorandum and Order. Plaintiff shall, as soon as possible,
complete the forms and send the completed forms back to the Clerk of the court. In
the absence of the forms, service of process cannot occur.
6.
Upon receipt of the completed forms, the Clerk of the court will sign the
summons forms, to be forwarded with a copy of the Complaint to the U.S. Marshal
for service of process. The Marshal shall serve the summons and Complaint without
payment of costs or fees. Service may be by certified mail pursuant to Fed. R. Civ.
P. 4 and Nebraska law in the discretion of the Marshal. The Clerk of the court will
copy the Complaint, and Plaintiff does not need to do so.
7.
Plaintiff is hereby notified that failure to obtain service of process on a
defendant by May14, 2014, may result in dismissal of this matter as to such defendant
without further notice. A defendant has twenty-one (21) days after receipt of the
summons to answer or otherwise respond to a complaint.
8.
The Clerk of the Court is directed to set a pro se case management
deadline in this case with the following text: “May 14, 2014: Check for service of
summons.”

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DATED this 17th day of March, 2014.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

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