Cheatham v. Gillespie, et al

Filing 14

ORDER that 13 Notice, construed as a Motion to Re-Serve Defendants, is GRANTED. The clerk shall re-issue summons and deliver with a copy of the Amended Complaint to the USM for service. Plaintiff shall have 20 days in which to provide the USM with a completed Form USM-285. Signed by Magistrate Judge Peggy A. Leen on 10/23/15. (Copies have been distributed pursuant to the NEF: USM 285 form w/instructions to plaintiff - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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EMMANUEL CHEATHAM,

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Case No. 2:14-cv-01166-APG-PAL
Plaintiff,

ORDER

v.

(Notice – Dkt. #13)

SCOTT, et al.,
Defendants.

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This matter is before the Court on Plaintiff Emmanuel Cheatham’s Notice (Dkt. #13)

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regarding unexecuted summons. This proceeding is referred to the undersigned pursuant to 28

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U.S.C. § 636(b)(1)(A) and LR IB 1-3 and 1-9 of the Local Rules of Practice.

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This is an action on a civil rights complaint pursuant to 42 U.S.C. § 1983. Plaintiff is a

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prisoner proceeding in this action pro se and in forma pauperis. See Order (Dkt. #3). The Court

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previously screened the Amended Complaint (Dkt. #5) and determined that it stated a claim

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under the Eighth Amendment for sexual assault against Defendants Scott, Washmoe, and Karvu.

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See Screening Order (Dkt. #8). The Court instructed the Clerk of the Court to issue summons to

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Defendants and deliver the same to the U.S. Marshals (“USM”) for service. Id. The Court also

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directed Plaintiff to provide the USM with the information to serve Defendants. Id.

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In his Notice (Dkt. #13), Plaintiff informed the Court that the U.S. Marshal was unable to

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serve Defendants.

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unexecuted for Defendant “L. Washmoe” and “Karvu” and noted in the remarks that no such

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officers worked there. See USM Returns Unexecuted (Dkt. #10, #12). For Defendant “Scott L.”

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the CCDC stated that thirteen “Scott Ls” work for the Las Vegas Metropolitan Police

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Department. See USM Return Unexecuted (Dkt. #11). In an apparent attempt to correct these

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deficiencies, the Notice provides additional information clarifying the Defendants names as

The Clark County Detention Center (“CCDC”) returned the summons

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“Leonard Washmor,” “Lisa Scott,” and “Karl Karvu,” who each work for CCDC. Notice (Dkt.

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#13).

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Rule 4(m) of the Federal Rules of Civil Procedure states a defendant must be served

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within 120 days after a complaint is filed. Id. The rule also provides that a court must extend the

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time for service for an appropriate period if a plaintiff shows good cause for his failure to timely

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serve the complaint. Id. As a general matter, a showing of good cause requires more than

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simple inadvertence, mistake of counsel, or ignorance of the procedural rules.

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Longbeach, 246 F .3d 674 (9th Cir. 2000). “At a minimum, good cause means excusable

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neglect.” Id.

Martin v.

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Any document filed by a pro se litigant is “to be liberally construed.” Erickson v. Pardus,

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551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976) (“The handwritten pro

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se document is to be liberally construed.”). Here, Plaintiff filed a handwritten Notice (Dkt. #13)

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in which he clarified the Defendants names and employer. This appears to be a request for

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permission to re-attempt service upon Defendants. The Court will therefore construe Plaintiff’s

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Notice as a motion to re-serve Defendants and extension of time for service. See Fed. Rule Civ.

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Proc. 8(f) (“All pleadings shall be so construed as to do substantial justice”). Plaintiff was

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required to provide the USM with information to serve the Complaint on Defendants. He did so,

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but the information he provided the USM was insufficient to effectuate service. Plaintiff has

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provided Defendants’ corrected names to show that re-service of the summons by the USM is

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warranted. As such, Plaintiff has shown good cause to re-serve Defendant and the Court will

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therefore grant the Motion.

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Accordingly,

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IT IS ORDERED:

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1. Plaintiff Emmanuel Cheatham’s Notice (Dkt. #13), is construed as a motion to re-

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serve Defendants, and is GRANTED.

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2. The Clerk of the Court shall re-issue summons for Defendants “Leonard Washmor,”

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“Lisa Scott,” and “Karl Karvu” and deliver the summons and a copy of the Amended

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Complaint (Dkt. #5) to the USM for service. The Clerk of the Court shall also mail

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Plaintiff a blank Form USM-285 along with instructions for completing the form.

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3. Plaintiff shall have 20 days in which to provide the USM with a completed Form

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USM-285, which must include the additional information needed for the USM to

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attempt to reserve Defendants. Plaintiff must file a notice with the Court identifying

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whether Defendants were served within 20 days after receiving a copy of the Form

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USM-285 from the USM showing whether service has been accomplished.

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4. If the USM is unable to serve one or more of the Defendants and Plaintiff wishes to

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have service attempted again, Plaintiff must file a motion with the Court specifying a

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more detailed name and/or address for said defendant(s), or whether some other

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manner of service should be attempted. In accordance with Rule 4(m) of the Federal

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Rules of Civil Procedure, service must be accomplished on all Defendants within 120

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days from the date of entry of this order, or by February 23, 2016.

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Dated this 23th day of October, 2015.

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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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