Crittendon v. Lombardo et al

Filing 52

ORDER. IT IS ORDERED that 45 Plaintiff's Motion to Re-serve Defendant is GRANTED. The Clerk of the Court shall re-issue summons for Defendant C.O. Brown, P#15615, and deliver the summons to the USMS for service along with a copy of 31 the Complaint, Brown's new USM-285 form ( 45 at 4), and this Order. See Order for details/deadlines. Signed by Magistrate Judge Peggy A. Leen on 3/13/2018. (Copies have been distributed pursuant to the NEF - cc: USM - MR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JOSHUA CRITTENDON,

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v.

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Case No. 2:17-cv-01700-RFB-PAL
Plaintiff,

ORDER

JOE LOMBARDO, et al.,

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(Mot. Re-Serve Def. – ECF No. 45)
Defendants.

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This matter is before the court on Plaintiff Joshua Crittendon’s Motion to Re-serve

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Defendant (ECF No. 45). This Motions is referred to the undersigned pursuant to 28 U.S.C.

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

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Mr. Crittendon is a pretrial detainee currently in the custody of the Clark County Detention

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Center (“CCDC”), and he is proceeding in this civil action pro se and in forma pauperis (“IFP”).

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This case arises from his allegations, pursuant to 28 U.S.C. § 1983, that defendants violated his

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civil rights. Upon review of the complaint, the court determined that it stated a plausible § 1983

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claims against five named defendants for excessive force, deliberate indifference to serious

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medical need, and unreasonable conditions of confinement, as well as state law claims for assault

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and battery and medical negligence. See Screening Order (ECF No. 30). Crittendon also stated

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claims against doe defendants for failure to protect (count I) and excessive force (count II). Id.

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On February 6, 2018, the court entered an Order (ECF No. 40) instructing the Clerk of the

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Court to deliver five completed USM-285 forms (ECF Nos. 34-1, 38-1) to the U.S. Marshal

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Service (“USMS”) to attempt service on Defendants Williamson; C.O. Sanchez; Sgt. Rogers; C.O.

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Torres; and C.O. Brown, P#15165. Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure,1

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Mr. Crittendon was informed that the deadline to accomplish service on these defendants is March

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Any references to a “Rule” or the “Rules” in this Order refer to the Federal Rules of Civil Procedure.

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29, 2018. Order (ECF No. 40) at 5. Service was completed for Defendants Rogers, Sanches,

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Torrez, Williamson. Summons Returned Executed (ECF No. 41). However, service was not

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completed for defendant Brown. Summons Returned Unexecuted (ECF No. 42) (noting that

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service was not accepted because P#15165 does not match the information on file).

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Rule 4(m) states a defendant must be served within 90 days after a complaint is filed. Id.

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The rule also provides that a court must extend the time for service for an appropriate period if a

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plaintiff shows good cause for his failure to timely serve the complaint. Id. As a general matter,

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a showing of good cause requires more than simple inadvertence, mistake of counsel, or ignorance

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of the procedural rules. Martin v. Longbeach, 246 F .3d 674 (9th Cir. 2000). “At a minimum,

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good cause means excusable neglect.” Id.

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In cases involving an incarcerated indigent plaintiff, the USMS will serve the summons

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and the complaint upon order of the court. See Fed. R. Civ. P. 4(c)(3); 28 U.S.C. § 1915(d). An

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incarcerated plaintiff will not “be penalized by having his action dismissed for failure to effect

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service” if the USMS or the court clerk fail to perform their duties. Puett v. Blandford, 912 F.2d

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270, 275 (9th Cir. 1990). However, it is the plaintiff’s responsibility to provide the USMS with

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information necessary to identify and locate each defendant to be served. See Walker v. Sumner,

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14 F.3d 1415, 1422 (9th Cir. 1994), abrogated on other grounds, Sandin v. Conner, 515 U.S. 472

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(1995). “So long as the prisoner has furnished the information necessary to identify the defendant,

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the marshal’s failure to effect service is automatically good cause” for an extension of the service

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deadline. Walker, 14 F.3d at 1422 (citation omitted). Although an incarcerated plaintiff is entitled

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to rely on the USMS for service of the summons and complaint, that reliance is only proper when

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he has provided the USMS with accurate and sufficient information to effectuate service. Puett,

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912 F.2d at 275; Walker, 14 F.3d at 1421–22.

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Mr. Crittendon’s Motion (ECF No. 45) identifies C.O. Brown as an unserved defendant

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and asks the court to order the USMS to re-attempt service on Brown with the corrected P#15615.

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Crittendon has shown good cause to re-attempt service on Brown, and the court will therefore

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grant the Motion. The Clerk of the Court will be directed to reissue summons to Brown and

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provide the same to the USMS to attempt service. If the USMS is unable to serve Brown and Mr.
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Crittendon wishes to have service attempted again, he must file a timely motion providing more

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detailed information such as a complete name and/or address for the unserved defendant, or

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whether some other manner of service should be attempted. Crittendon is ultimately responsible

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for providing the USMS with information necessary to identify and locate each defendant to be

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served. See Walker, 14 F.3d at 1422. Pursuant to Rule 4(m), the service deadline is extended until

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April 13, 2018. Mr. Crittendon’s failure to complete service by that deadline may result in a

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recommendation to the district judge that the claims against Defendant Brown be dismissed

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without prejudice.

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IT IS ORDERED:

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1. Plaintiff’s Motion to Re-serve Defendant (ECF No. 45) is GRANTED.

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2. The Clerk of the Court shall re-issue summons for Defendant C.O. Brown, P#15615,

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and deliver the summons to the USMS for service along with a copy of the Complaint

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(ECF No. 31), Brown’s new USM-285 form (ECF No. 45 at 4), and this Order.

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3. After attempting service, the USMS shall file a notice with the court indicating whether
Defendant Brown was served, and Mr. Crittendon will be mailed a copy of the same.

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4. If the USMS is unable to serve Defendant Brown, and Mr. Crittendon wishes to have

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service attempted again, Crittendon must file a motion with the court providing more

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information such as a complete name and/or address for the unserved defendant, or

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whether some other manner of service should be attempted.

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5. Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, the deadline to serve
Defendant Brown is extended until April 13, 2018.

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6. Mr. Crittendon’s failure to timely complete service on Defendant Brown may result in

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a recommendation to the district judge for dismissal of the claims against Defendant

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Brown without prejudice.

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Dated this 13th day of March, 2018.

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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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