Ellsworth v. Kendall et al, No. 2:2011cv02554 - Document 16 (D. Ariz. 2012)
Court Description: ORDER granting 15 Plaintiff's Motion for District Court Assistance to the extent set forth in this order. Paul Edward Carter, Office of the Attorney General, Liability Management Section, shall provide the forwarding address for defendant R ose Dacumos, if any, to the United States Marshal in a confidential memorandum indicating that the summons and complaint is to be delivered to that address on or before July 2, 2012; Within thirty (30) days of receipt of any available address from at torney Carter, the United States Marshal shall serve a copy of plaintiff's complaint and summons upon defendant Rose Dacumos in accordance with this order and the court's January 10, 2012 order granting, inter alia, plaintiff leave to proce ed in forma pauperis.The Clerk of the Court shall provide a copy of: (1) the court's January 10, 2012 order (Doc. 5]; (2) this order; (3) the complaint, summons and a blank U.S. Marshal form 285 to the attorney Carter for purposes of re-attempti ng service as to defendant Rose Dacumos; Alternatively, if attorney Carter is unable to procure defendant Rose Dacumos' address from the Florence facility, he shall notify this court and plaintiff in writing by no later than July 2, 2012. Signed by Senior Judge Robert C Broomfield on 5/18/12. (the service packet is being mailed to Atty Carter this date)(DMT)
Ellsworth v. Kendall et al 1 Doc. 16 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 11 12 James Jackson Ellsworth, 13 Plaintiff, 14 15 vs. Dennis Kendall, et al., 16 Defendants. ) ) ) ) ) ) ) ) ) ) No. CIV-11-02554-PHX-RCB O R D E R 17 18 Introduction 19 Plaintiff pro se, James Jackson Ellsworth, is incarcerated 20 at the Arizona State Prison Complex-Florence, South Unit (“the 21 Florence facility”). 22 “Request for District Court Assistance” in serving defendant 23 Rose Dacumos. Req. (Doc. 15) at 9. 24 25 Currently pending before the court is his Background On December 23, 2011, plaintiff, who claims to “suffer 26 from multiple scler[o]sis[,]” filed the present action. 27 (Doc. 1) at 3, ¶ 3. 28 Florence facility were deliberately indifferent to his serious Co. He alleges that the defendants at the medical needs in violation of the Eighth Amendment by failing Dockets.Justia.com 1 to 2 prescri[ption]” for one “to assist . . . with his mobility[.]” 3 Id. 4 provided with a cane, he fell, sustaining injuries to his head, 5 which required hospitalization and stitches. provide him with a cane despite “the doctor[’s] Plaintiff further alleges that as a result of not being Id. at 4, ¶ 4. 6 After being granted leave to proceed in forma pauperis, 7 plaintiff was given 21 days from January 10, 2012, in which to 8 complete and return the service packets to the Clerk of the 9 Court as to defendants, “Nurse Rose, Nurse Judy, and Facility 10 Health Administrator Dennis Kendall.” 11 (4); and at 3:2-3. 12 those completed service packets to the United States Marshal 13 Service (“USMS”) for service as Fed.R.Civ.P. 4(c)(3) allows. 14 Ord. (Doc. 5) at 5, ¶ Plaintiff did that, and the Clerk forwarded Plaintiff had indicated that service was to be made upon 15 each of the three defendants at the Florence facility. 16 Defendants 17 attorney 18 executed waivers of service, which were filed on their behalf. 19 See Docs. 8 and 9. 20 returned unexecuted. The process receipt and return form (“form 21 USM-285") indicated, “Agency verified - no ‘Nurse Rose’ employed 22 at the facility listed.” 23 Kendall Paul E. Thereafter, and nurse Carter, Judy Office Jiminez, of the through Attorney their General, As to “Nurse Rose,” however, the summons was on Doc. 7. April 11, 2012, the court granted 24 plaintiff’s motion to amend his complaint “to indicate that 25 defendant 26 Dacumos[.]” Ord. (Doc. 12) at 1:13-14. 27 also was given twenty days from the date of receipt of the 28 service packet as to defendant Dacumos in which to complete and “Nurse Rose” is properly -2- identified as “Rose At that time, plaintiff 1 return that packet to the Clerk of the Court for service by the 2 USMS. 3 service was to made upon defendant Dacumos at the Florence 4 facility. 5 returned packet - “RTS - No longer with Dept.[,]”1 and was 6 returned as “Not Deliverable as Addressed Unable to Forward[.]” 7 Id. (sic) at 1 and 2. 8 9 See id. See Doc. 14. Having Dacumos, Plaintiff did that, again specifying that twice plaintiff The form USM-285 indicated, “Facility attempted filed and the failed pending to serve defendant “request [for] the 10 Court’s assistance in serving” her. 11 Plaintiff is seeking such assistance claiming that he “does not 12 have 13 Defendant Dacumos, and has no other means of effecting service.” 14 Id. at 1:19-20. the ability 15 to conduct a Req. (Doc. 1) at 22. search for the address of Discussion 16 At this juncture, the court is not yet contemplating 17 dismissal pursuant to Fed.R.Civ.P. 4(m). That Rule does provide 18 some context for plaintiff Ellsworth’s request though. Pursuant 19 to Rule 4(m): 20 If a defendant is not served within 120 days after the complaint is filed, the court— on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. 21 22 23 24 25 Fed.R.Civ.P. 4(m). In a case such as this, where the plaintiff 26 27 28 1 Presumably, although the court cannot be certain, “RTS” refers to defendant Rose Dacumos, as her name is plainly printed on the envelope with that notation. See Doc. 14 at 2. -3- 1 is proceeding in forma pauperis, the USMS, upon order of the 2 court, shall serve the summons and the complaint. Fed.R.Civ.P. 3 4(c)(2). “[A]n incarcerated pro se plaintiff proceeding in forma 4 pauperis is entitled to rely on the U.S. Marshal for service of 5 the summons and complaint and . . . should not be penalized by 6 having his action dismissed for failure to effect service where 7 the U.S. Marshal or the court clerk has failed to perform his 8 duties.” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) 9 (internal quotation marks and citation omitted), abrogated on 10 other grounds by Sandin v. Connor, 515 U.S. 472, 115 S.Ct. 2293, 11 132 L.Ed.2d 418 (1995). “So long as the prisoner has furnished 12 the information necessary to identify the defendant, the 13 marshal's failure 14 cause[.]” Walker, 14 F.3d at 1422 (internal quotation marks and 15 citation omitted). to effect service is automatically good However, where a pro se plaintiff fails to 16 “prove that he provided the [USMS] with sufficient information 17 to serve [a given defendant] or that [the plaintiff] in fact 18 requested that 19 dismissal of 20 discretion. 21 [that the defendant] unserved be served[,]” defendant is not sua an sponte abuse of Walker, 14 F.3d at 1422. In the present case, “because plaintiff has not yet been 22 able to ascertain the proper location where defendant [Dacumos] 23 may now be served, he must remedy 24 dismissal of his claims against him.” the situation or face See Brooks v. Munoz, 2010 25 WL 2523939, at *1 (S.D.Cal. June 21, 2010) (citing Walker, 14 26 F.3d at 1421-22 (holding prisoner failed to show cause why 27 prison official should not be dismissed under Rule 4(m) where 28 prisoner failed to show he had provided Marshal with sufficient -4- 1 information to effectuate service)). 2 that “neither the [USMS] nor The court is keenly aware the Court may engage in 3 investigatory efforts on behalf of the parties to a lawsuit as 4 this would 5 advocate.” improperly place the Court in the role of an DeRoche v. Funkhouser, 2008 WL 42277659, at *1 6 (D.Ariz. Sept. 16, 2008) (citing Hall v. Bellmon, 935 F.2d 1106, 7 1110 (10th Cir. 1991) (holding that the court should not assume 8 the role of advocate for a pro se litigant)); see also Ramirez 9 v. Denver Health Medical Center, 2006 WL 2527965, at *3 (D.Colo. 10 Aug. 30, 2006) (further noting that “[i]t is neither the role 11 nor the responsibility of the Court or the U.S. Marshals 12 Service, to investigate the whereabouts or to locate parties to 13 a lawsuit”). 14 Nonetheless, the court agrees with the approach taken in 15 Brooks that “as long as [the] defendant[’s] forwarding address 16 can be easily ascertained by reference to the [facility’s] 17 personnel records, plaintiff is entitled to rely on the U.S. 18 Marshal to effect service upon this defendant on his behalf.” 19 Brooks, 2010 WL 2523939, at *1 (citing Puett v. Blandford, 912 20 F.2d 270, 275 (9th Cir. 1990)); cf. Colon v. Zia, 2011 WL 21 6025657, at *3 (E.D.Cal. Dec. 2, 2011) (where state prisoner was 22 proceeding pro se, the court ordered the USMS to “enlist the 23 assistance of the Legal Affairs Division of” the state 24 department of corrections, to “attempt to serve [defendant] at 25 another address); Lateef v. Jackson, 2009 WL 393857, at *2 26 (N.D.Cal. Feb. 13, 2009) (where plaintiff inmate’s summons was 27 returned with the comment that the defendant was “no longer at 28 the facility[,]” the court ordered the Clerk of the Court to -5- 1 send a copy of 2 Coordinator[,] 3 address court’s who is to requested the to facility provide “Litigation any forwarding information that is available with respect to” the 4 unserved defendant). 5 a order former Certainly, requiring a prison to provide employee’s forwarding address, which is “easily 6 ascertained by reference to the [prison’s] personnel records,” 7 does not require either the court or the USMS to engage in any 8 type of investigative efforts. 9 *1 (citation omitted). See Brooks, 2010 WL 2523939, at This is not a situation such as Colon v. 10 Zia, 2011 WL 6025657 (E.D.Cal. Dec. 2, 2011), where the inmate 11 plaintiff is “request[ing] the Court to direct the Marshal to 12 investigate records of the Department of Justice, Federal Bureau 13 of Investigation, [the California Department of Corrections and 14 Rehabilitation], and [the] State of California to 15 identifying information to locate and serve” a defendant. find Id. 16 at *3. 17 In light of the foregoing, and consistent with the court’s 18 approach in Brooks, the court hereby directs that Paul Edward 19 Carter, Office of the Attorney General, Liability Management 20 Section, and attorney of record for the served defendants 21 herein, contact the Florence facility, and provide a current 22 address for defendant Rose Dacumos, if such address is within 23 that facility’s records or possession, and to forward that 24 address to the USMS in a confidential memorandum. 25 2010 WL 2523939, at *1. 26 Carter, may endeavor to See Brooks, Alternatively, attorney Paul Edward secure 27 defendant Rose Dacumos. 28 -6- a waiver of service from 1 2 Conclusion Accordingly, IT IS HEREBY ORDERED that: 3 4 (1) Plaintiff’s “Request for District Court Assistance” 5 (Doc. 15) is GRANTED to the extent set forth above; 6 7 (2) 8 Liability Paul Edward Carter, Office of the Attorney General, Management Section, shall provide the forwarding 9 address for defendant Rose Dacumos, if any, to the United States 10 Marshal in a confidential memorandum indicating that the summons 11 and complaint is to be delivered to that address on or before 12 July 2, 2012; 13 14 (3) Within thirty (30) days of receipt of any available 15 address from attorney Carter, the United States Marshal shall 16 serve a copy of plaintiff’s complaint and summons upon defendant 17 Rose Dacumos in accordance with this order and the court’s 18 January 10, 2012 order granting, inter alia, plaintiff leave to 19 proceed in forma pauperis; 20 21 (4) The Clerk of the Court shall provide a copy of: (1) the 22 court’s January 10, 2012 order (Doc. 5]; (2) this order; (3) the 23 complaint, summons and a blank U.S. Marshal form 285 to the 24 attorney Carter for purposes of re-attempting service as to 25 defendant Rose Dacumos; 26 27 (5) Alternatively, if attorney Carter is unable to procure 28 defendant Rose Dacumos’ address from the Florence facility, he -7- 1 shall notify this court and plaintiff in writing by no later 2 than July 2, 2012. 3 4 DATED this 18th day of May, 2012. 5 6 7 8 9 10 Copies to counsel of record and plaintiff pro se 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8-
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