Emilio v. Nebraska Department of Correctional Services et al

Filing 18

MEMORANDUM AND ORDER denying Plaintiff's Motion to Serve Summons 17 . Plaintiff is to complete and return the 3 summons forms and 3 USM-285 forms that the Clerk will provide. Plaintiff is hereby notified that failure to obtain service of proces s on a defendant by January 13, 2014, may result in dismissal of this matter without further notice as to such defendant. The Clerk of Court is directed to set a Pro Se Case Management Deadline for January 14, 2014: Check for service of summons. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party with forms) (JSF)

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

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4:13CV3088

MEMORANDUM
AND ORDER

This matter is before the court on Plaintiff’s Motion to Serve Summons.
(Filing No. 17.) 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). However, Plaintiff has not provided
the Marshals with an address to serve Defendants. (Filing No. 17.) It is Plaintiff’s
duty to determine Defendants’ whereabouts, not the duty of the marshals service or
the clerk’s office. See Gray v. Rose, Nos. 2:08–CV–251, 2:08–CV–1154, 2009 WL
2132623, at *3 (S.D. Ohio July 10, 2009) (“The fact that this defendant could not be
effectively served with process at that address is chargeable to plaintiff, not to either
the Clerk or the Marshal.”); see also Gustaff v. MT Ultimate Healthcare, No. 06 CV
5496(SLT)(LB), 2007 WL 2028103, at *3 (E.D.N.Y. June 21, 2007) (“The United
States Marshals Service cannot investigate defendant’s whereabouts, nor can the
court. That is Plaintiff’s responsibility.”). Where a pro se plaintiff fails to provide
the Marshals with accurate and sufficient information to effect service of the
summons and complaint, the court may, sua sponte, dismiss any unserved defendants.
See, e.g., Walker v. Sumner, 14 F.3d 1415, 1421–22 (9th Cir. 1994), abrogated in
part on other grounds by Sandin v. Conner, 515 U.S. 472 (1995).

In this matter, Plaintiff has until December 13, 2013, to compete service of
summons. (See Filing No. 16.) On its own Motion, the court will provide Plaintiff
with additional time to provide the Marshals with accurate and sufficient information
to effect service of summons. The court warns Plaintiff that if he fails to provide the
proper information and complete service of process by January 13, 2014, his claims
may be dismissed against any unserved Defendants without further notice.
IT IS THEREFORE ORDERED that:
1.
Plaintiff’s Motion to Serve Summons (filing no. 17) is denied because
his Summons and USM-285 forms contain insufficient information.
2.
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 THREE (3) summons forms and THREE (3) USM-285 forms (for
service on Defendants in their individual capacities only) 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.
3.
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.
4.
Plaintiff is hereby notified that failure to obtain service of process on a
defendant by January 13, 2014, may result in dismissal of this matter without further

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notice as to such defendant. A defendant has twenty-one (21) days after receipt of the
summons to answer or otherwise respond to a complaint.
5.
The Clerk of the Court is directed to set a pro se case management
deadline in this case with the following text: “January 14, 2014: Check for service of
summons.”
DATED this 9th day of December, 2013.
BY THE COURT:
s/ John M. Gerrard
United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The
U.S. District Court for the District of Nebraska does not endorse, recommend,
approve, or guarantee any third parties or the services or products they provide on
their Web sites. Likewise, the court has no agreements with any of these third parties
or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.
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