Almy v. Davis et al

Filing 110

ORDER Granting 105 Motion for Order to Serve Summons and Civil Complaint. Signed by Magistrate Judge Cam Ferenbach on 3/29/2013. (Copies have been distributed pursuant to the NEF ; CC: USM - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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KEVIN ALMY,
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Plaintiff,
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v.
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D. DAVIS, et al.,
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Defendants.

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2:12-cv-00129-JCM -VCF
ORDER
(Motion For Order To Serve Summons and
Complaint #105)

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Before the court is plaintiff Kevin Almy’s Motion For Order To Serve Summons and Complaint.
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(#105).
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A.

Relevant Background

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Plaintiff Almy filed his motion to proceed in forma pauperis (#1) and complaint (#1-1) on
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January 14, 2012. On January 24, 2012, plaintiff filed a motion to appoint counsel and to file enlarged
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complaint. (#2 and #3). On January 31, 2012, and February 2, 2012, the plaintiff filed two additional
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motions for appointment of counsel. (#4 and #5). On April 4, 2012, plaintiff filed an amended
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complaint (#6) and a motion to amend complaint (#7). On May 23, 2012, the plaintiff filed a letter
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requesting a status of his case. (#8). On June 18, 2012, the court issued a screening order granting the
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motion to amend complaint (#7), denying plaintiff’s motions for counsel (#2, #4, and #5), and denying
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plaintiff’s motion to file enlarged complaint (#3) as moot. (#9). The screening order also dismissed
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several claims and deferred ruling on the motion to proceed in forma pauperis (#1) until the parties had
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an opportunity to settle the dispute via mediation. Id.
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On June 28, 2012, the court issued an order scheduling the matter for an inmate early mediation
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conference. (#10). The conference was held on August 10, 2012, and the parties did not settle. (#12).
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The court issued an order on August 13, 2012, granting the motion to proceed in forma pauperis (#1),
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ordering partial payment of the filing fees, and ordering service on the defendants. (#13). On August

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29, 2012, the Attorney General filed a notice of acceptance of service on behalf of defendants “Eric

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Fancher, Pamela Feil, Brandt Halling, Brian Henley, James Keener, Keith Kennedy, Robert LeGrand,

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Terry Lindberg, Wesley Mattice, Veronica Meza, Greg Smith, Ted Tackett, Tonya Thomas, Ruben

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Vidaurri, Maria Ward, and Tracey Ward.” (#14). The notice stated that the Attorney General did not

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accept service on behalf of D. Davis or Holloway, as there are no current or past employees matching

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these descriptions. Id.

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On August 29, 2012, defendants filed a sealed notice of the last known address for defendant

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Richard T. Nelson. (#16). On October 11, 2012, the defendants filed a partial motion to dismiss. (#27).

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On October 25, 2012, plaintiff filed a motion to extend time for service (#36), a motion to compel

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identification of defendants (#37), a motion for appointment of counsel (#38), a motion for early

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submission of expanded interrogatories (#39), and an emergency motion for temporary restraining order

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(hereinafter “TRO”) (#40). The court denied plaintiff’s motion for TRO (#40) without prejudice.

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(#41). On October 30, 2012, plaintiff filed a motion for entry of clerk’s default as to all defendants.

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(#43). Default was entered on the same day (#44), and the court vacated the default on November 7,

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2012 (#46), as defendants had appeared in the case. The clerk entered an amended default as to D.

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Davis, T. Nelson, and Holloway on November 8, 2012. (#48).

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Defendants opposed the plaintiff’s motion to compel (#37), motion for appointment of counsel

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(#38), and motion for early submission of expanded interrogatories (#39) on November 13, 2012. (#49

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and #50). The court vacated the clerk’s amended default (#48) on November 19, 2012 (#52), as Nelson,

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Davis, and Holloway had not been served. (#52). On the same day, plaintiff filed an objection/motion

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to strike (#53) and a motion for sanctions (#54). The undersigned issued a minute order on November

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20, 2012, scheduling a hearing on the motion for extension of time for service (#36) for December 13,

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2012. (#56). Plaintiff filed a motion to compel service (#58), a motion to permit plaintiff to file reply

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to defendants’ opposition (#59), and a motion to extend time to respond to the motion to dismiss (#60).

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The court granted two of plaintiff’s motions (#59 and #60) on November 28, 2012. (#61).

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On November 29, 2012, plaintiff filed an amended motion for appointment of counsel (#62),

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and on November 30, 2012, plaintiff filed a supplement thereto (#63). On December 4, 2012, plaintiff

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filed a motion for judicial notice. (#65). On December 5, 2012, the defendants filed a motion to

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consolidate all outstanding motions for purposes of the hearing scheduled for December 13, 2012.

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(#67). The court granted the motion on December 7, 2012. (#68). The order stated that “no additional

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briefing is required on the pending motions...” and that “[t]he topic of further briefing will be addressed

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at the December 13, 2012 hearing.” Id. On December 10, 2012, plaintiff filed another motion for

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judicial notice. (#69). On December 13, 2012, plaintiff filed a third motion for judicial notice. (#71).

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On December 13, 2012, the court held a hearing to address all pending discovery motions. (#36,

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#37, #38, #39, #53, #54, #58, #62, #63, #65, #69, and #71). (#72). On December 14, 2012, the court

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issued an order granting motions (#36 and #37), denying motions (#38, #39, #54, #62, #65, #69, and

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#71), partially granting (#58), striking (#53), and ordering plaintiffs’ opposition to the defendants’

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partial motion to dismiss (#27) due on February 28, 2012. (#73). With regard to service, the court held

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that “[t]he Attorney General’s Office must proceed as stated above with regard to accepting service on

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behalf of Davis and filing under SEAL the last known address of Holloway. The Attorney General’s

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Office must also inform plaintiff when it is able to accept service on behalf of Davis.” Id.

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On December 19, 2012, the Attorney General’s Office filed a notice of acceptance of service

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on behalf of “D. Davis,” true name of Michael Davis. (#75). On January 10, 2013, the Attorney

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General’s Office filed a corrected notice of acceptance of service, stating that after it accepted service

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on behalf of Michael Davis, plaintiff provided a more detailed description of this individual, “which

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resulted in Defendants discovering there was also a “Brandon Davis” employed at Lovelock

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Correctional Center on the day in question.” (#76). The Attorney General’s Office represented to the

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court that it “determined “Brandon Davis” is the individual identified as “D. Davis,” as he was working

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the day shift on May 26, 2010,” but that he is no longer an employee of the Nevada Department of

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Corrections. Id.

On the same day, the Attorney General’s Office filed under SEAL a notice of last

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known address for Brandon Davis. (#77).

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hearing/production of prisoner. (#78). On January 16, 2013, plaintiff filed a notice of partial motion

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to dismiss (#79), and on January 17, 2013, plaintiff filed a motion to submit plaintiff for physical exam

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(#80). On January 23, 2013, defendants filed a response to the notice (#79), and on January 24, 2013,

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defendants filed a response to the motion for hearing/production of prisoner (#83). On January 28,

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2013, plaintiff filed a motion for the District Judge to amend its order (#84) and a motion for order to

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serve summons and civil complaint (#85). On February 1, 2013, defendants filed a motion to extend

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time to respond to plaintiff’s motion to submit to physical exam (#80). (#86).

On January 10, 2013, plaintiff filed a motion for

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Plaintiff filed his reply in support of his motion for hearing/production of prisoner on February

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12, 2013. (#88). Plaintiff filed an opposition to defendants’ motion to extend time (#86). (#89). On

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February 15, 2013, defendants filed a reply in support of its motion for extension of time. (#90).

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Defendants filed an opposition to the plaintiff’s motion to submit to physical exam (#80). (#91). On

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February 20, 2013, the court issued an order stating that the court grants plaintiff’s request for this

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“court to order “the Marshals’ Service to serve plaintiff’s summons and civil rights complaints in the

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instant case upon [d]efendants “Terry Nelson” and “Brandon Davis” to whom [d]efendants’ counsel

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filed last known addresses with the court.” (#85).” (#92). The court ordered the Marshals to serve

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Davis and Nelson and stated that the “plaintiff must file a notice with the court stating if defendants

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were served.” Id. The court issued summons as to Davis and Nelson on February 21, 2013 (#93).

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Plaintiff filed the instant motion for order to serve summons and civil complaint on March 15, 2013.

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(#105).

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B.

Plaintiff’s Motion for Service (#105)

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Plaintiff asserts that he inadvertently omitted defendant Johnny Holloway from his original

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motion for order to serve summons and complaint (#85), and asks this court for an order requiring the

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Marshals to serve Johnny Holloway. (#105). The court held in its December 14, 2012, order, that

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since the “Deputy Attorney General...stated that his office is obtaining the last known address of Johnny

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Holloway, and will file it under SEAL with the court upon receipt,” the Attorney General’s Office must

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file under SEAL the last known address of Holloway. (#73).

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Upon a review of the docket in this matter, the court noticed that the Attorney General’s Office

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did not file the last known address for Holloway as ordered by the court, and filed the last known

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address of Davis only (#77). On March 19, 2013, the court entered a minute order requiring the

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Attorney General’s Office to file under SEAL the last known address for defendant Johnny Holloway

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on or before April 1, 2013. (#107). On March 29, 2013, the Attorney General’s Office filed under

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SEAL the last known address of Johnny Holloway. (#109).

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An incarcerated pro se litigant proceeding in forma pauperis must “be allowed the chance to

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serve defendants personally through the Marshal’s Service.” Romandette v. Weetabix Co., Inc., 807

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F.2d 309, 311 (2nd Cir. 1986); See also 28 U.S.C. § 1915(d) (“The officers of the court shall issue and

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serve all process, and perform all duties in such cases.”). As the plaintiff inadvertently did not include

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Holloway in his original motion for order to serve summons and complaint (#85)1, and the Attorney

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General’s Office has now filed under SEAL Holloway’s last known address (#109), the court finds that

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ordering the Marshals to serve defendant Holloway is appropriate.

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Accordingly, and for good cause shown,

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IT IS HEREBY ORDERED that plaintiff Kevin Almy’s Motion For Order To Serve Summons

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and Complaint (#105) is GRANTED.

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IT IS FURTHER ORDERED that the Clerk of the Court will make one copy of the amended

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complaint (#6), issue summons to defendant Johnny Holloway at the last known address filed under

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SEAL (#109), deliver the same to the U.S. Marshal for service, and send one blank copy of the USM-

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285 form to the plaintiff.

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Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 584 (1972)(holding that pro se plaintiffs are held to a less
stringent standard than those who are represented by counsel.)

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IT IS FURTHER ORDERED that the plaintiff will have twenty (20) days to furnish to the U.S.

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Marshal the required USM-285 form. Within twenty (20) days after plaintiff receives a copy of the

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completed USM-285 form from the U.S. Marshal, plaintiff must file a notice with the court stating if

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defendant Holloway was served. If the plaintiff wishes to have the U.S. Marshal attempt service again

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on defendant Holloway, then a motion must be filed with the court.

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DATED this 29th day of March, 2013.

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CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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