Emilio v. Nebraska Department of Correctional Services et al

Filing 41

MEMORANDUM AND ORDER that the court's previous order dismissing Antholz as a defendant from this action 36 is rescinded. The clerk's office is directed to complete the form USM-285, and any other required forms, and forward it, the Compla int, and Filing Number 31 to the Marshal for service of process on Antholz. The Marshal shall serve the summons and Complaint without payment of costs or fees. The clerk's office shall set a pro se case management deadline using the following te xt: September 29, 2014: check completion of service. The dates set forth in the Order Setting Schedule for Progression of a Case 37 are suspended pending further notice from the court. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party and as directed) (JSF)

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

)
)
)
)
)
)
)
)
)
)

4:13CV3088

MEMORANDUM
AND ORDER

This matter is before the court on its own motion. Under Rule 60(a) of the
Federal Rules of Civil Procedure, a “court may correct a clerical mistake or a mistake
arising from oversight or omission whenever one is found in a judgment, order, or
other part of the record.” Fed. R. Civ. P. 60(a). The court may do so on its own
motion without prior notice to the parties. Id.
On July 2, 2014, the court dismissed Plaintiff’s claims against Defendant
L. Antholz because Plaintiff did not show good cause for his failure to serve Antholz
with process. (Filing No. 36.) Upon further review of the record, the court finds that
insufficient attempts were made to serve Antholz with process.
Because Plaintiff is proceeding in forma pauperis, he was entitled to rely on
service by the United States Marshals Service. Wright v. First Student, Inc., 710 F.3d
782, 783 (8th Cir. 2013). And pursuant to 28 U.S.C. § 1915(d), in an in forma
pauperis case, “[t]he officers of the court shall issue and serve all process, and
perform all duties in such cases.” See Moore v. Jackson, 123 F.3d 1082, 1085 (8th
Cir. 1997). So long as the plaintiff has provided the necessary information, the
Marshals’ failure to effect service is automatically good cause within the meaning of
Rule 4(m) for failing to serve process. Moore, 123 F.3d at 1085-86; Gonzalez v.
L’Oreal USA, Inc., 489 F. Supp. 2d 181, 184 (N.D.N.Y. 2007).

Here, Plaintiff provided the name and address for Antholz on the summons
form he completed and returned to the court on April 11, 2014. (See Filing No. 31.)
The Marshal attempted service by certified mail on April 30, 2014. When the mail
was returned as “unclaimed,” no further attempt at service was made. (See Filing No.
32.) The court finds this attempt at service was insufficient where no attempt was
made to personally deliver a copy of the summons to Antholz at the address provided
by Plaintiff. Accordingly, the court will direct the clerk’s office to forward Filing
Number 31 to the Marshal, along with copies of Plaintiff’s Complaint, and to
complete and forward any other necessary forms, including the Marshal’s form USM285.1
IT IS THEREFORE ORDERED that, on the court’s own motion:
1.
The court’s previous order dismissing Antholz as a defendant from this
action (Filing No. 36) is rescinded.
2.
The clerk’s office is directed to complete the form USM-285, and any
other required forms, and forward it, the Complaint, and Filing Number 31 to the
Marshal for service of process on Antholz. The Marshal shall serve the summons and
Complaint without payment of costs or fees.
3.
The clerk’s office shall set a pro se case management deadline using the
following text: September 29, 2014: check completion of service.

1

Plaintiff is cautioned that it is his responsibility to properly identify Antholz
and where he can be served. See Gustaff v. MT Ultimate Healthcare, No. 06CV 5496
(SLT)(LB), 2007 WL 2028103, at *3 (E.D.N.Y June 21, 2007); Gonzalez, 489 F.
Supp. 2d at 184. If Antholz cannot be effectively served with process at the address
Plaintiff has provided, the failure will be imputed to him, and his claims may still face
dismissal pursuant to Rule 4(m).
2

4.
The dates set forth in the Order Setting Schedule for Progression of a
Case (Filing No. 37) are suspended pending further notice from the court.
DATED this 29th day of July, 2014.
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.

3