Nogales v. Burke et al, No. 3:2022cv00702 - Document 9 (S.D. Cal. 2022)
Court Description: ORDER Granting 8 Motion for Leave to Proceed in forma pauperis and for U.S. Marshal Service Pursuant to 28 U.S.C. § 1915(d) and Fed. R. Civ. P. 4(c)(3) and Extending Time to Serve Defendants. Signed by Judge Michael M. Anello on 10/17/2022. (All non-registered users served via U.S. Mail Service) (Certified Copy to USM) (tcf)
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Nogales v. Burke et al Doc. 9 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 13 JOSE NOGALES, CDCR #G-52536, Case No.: 22-cv-702-MMA (DEB) 14 vs. 15 16 ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS AND FOR U.S. MARSHAL SERVICE PURSUANT TO 28 U.S.C. § 1915(d) AND FED. R. CIV. P. 4(c)(3) AND EXTENDING TIME TO SERVE DEFENDANTS Plaintiff, BURKE, et al., Defendants. 17 18 [Doc. No. 8] 19 20 21 22 On May 16, 2022, Plaintiff Jose Nogales, a state prisoner proceeding pro se, paid 23 the civil filing fee and filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. Doc. 24 Nos. 1, 2. On May 25, 2022, Plaintiff filed a motion for service of the summons and 25 Complaint. Doc. No. 3. 26 On June 6, 2022, the Court screened the Complaint pursuant to 28 U.S.C. § 1915A 27 and dismissed all claims against all Defendants except Plaintiff’s retaliation claims 28 against Defendants Lopez, Burke, Weiwel, Tovar, Narvaez, Duarte, and Martinez, and -1- 22-cv-702-MMA (DEB) Dockets.Justia.com 1 his void for vagueness claim against Defendant Allison. Doc. No. 4 at 4–11. The Court 2 denied Plaintiff’s request to issue a summons without prejudice as premature and he was 3 notified he had the option of amending his Complaint to cure the pleading defects of the 4 dismissed claims or proceeding only with those claims which survived screening. Id. at 5 12. 6 Plaintiff filed a First Amended Complaint (“FAC”) on June 10, 2022. Doc. No. 5. 7 On July 18, 2022, the Court screened the FAC pursuant to 28 U.S.C. § 1915A. Doc. 8 No. 6. The Court dismissed all claims against all Defendants without further leave to 9 amend except those claims which had survived the original screening, which included his 10 retaliation claims against Defendants Lopez, Burke, Weiwel, Tovar, Narvaez, Duarte, and 11 Martinez, and his void for vagueness claim against Defendant Allison. Id. at 3–10. The 12 Court directed the Clerk of Court to issue a summons upon those Defendants and notified 13 Plaintiff that because he was not proceeding in forma pauperis (“IFP”) he was not 14 automatically entitled to United States Marshal service and was responsible for having 15 the summons and FAC served within 90 days of the date of the July 18, 2022, Order. Id. 16 at 10–11, 10 n.1. 17 On July 18, 2022, the Clerk issued a summons as to Plaintiff’s FAC as required by 18 Fed. R. Civ. P. 4(b). Doc. No. 7. No proof of service has yet to be filed. Rather, on 19 October 7, 2022, Plaintiff filed a Motion to Proceed IFP and for United States Marshal 20 Service. Doc. No. 8. 21 MOTION TO PROCEED IFP 22 Although Plaintiff paid the initial $402 civil and administrative filing fee, see Doc. 23 No. 2, he may still be eligible to proceed IFP. A request to proceed IFP may be initiated 24 at any stage of a proceeding, since a person who is not an indigent when they first file a 25 suit may become one during or prior to its prosecution. See Stehouwer v. Hennessey, 841 26 F. Supp. 316, 321 (N.D. Cal. 1994) (“IFP status may be acquired or lost throughout the 27 course of the litigation, . . . .”), aff’d in pertinent part sub. nom, Olivares v. Marshall, 59 28 F.3d 109 (9th Cir. 1995). -2- 22-cv-702-MMA (DEB) 1 28 U.S.C. § 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 2 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 3 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 4 § 1915(a)(2). Plaintiff’s inmate trust account statement shows he has an available 5 balance of $0.04. Doc. No. 8-1 at 7. The Court finds Plaintiff’s motion to proceed IFP, 6 when considered in light of Plaintiff’s pro se and incarcerated status, is sufficient to 7 demonstrate that since the commencement of this action Plaintiff has become financially 8 unable to execute service upon the Defendants on his own behalf and to timely pursue the 9 prosecution of his case. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). The Court 10 therefore GRANTS Plaintiff’s Motion to Proceed IFP. 11 MOTION FOR U.S. MARSHAL SERVICE 12 Because Plaintiff is proceeding IFP he is entitled to have the U.S. Marshal effect 13 service of the summons and FAC with respect to those claims against those Defendants 14 which survived screening, namely, his retaliation claims against Defendants Lopez, 15 Burke, Weiwel, Tovar, Narvaez, Duarte, and Martinez, and his void for vagueness claim 16 against Defendant Allison. See 28 U.S.C. § 1915(d) (“The officers of the court shall 17 issue and serve all process, and perform all duties in [IFP] cases.”); Fed. R. Civ. P. 18 4(c)(3) (“[T]he court may order that service be made by a United States marshal or 19 deputy marshal . . . if the plaintiff is authorized to proceed in forma pauperis under 28 20 U.S.C. § 1915.”). Accordingly, the Court GRANTS Plaintiff’s Motion for United States 21 Marshal service. 22 23 EXTENSION OF TIME TO SERVE SUMMONS AND FAC Plaintiff requires an extension of time in which to serve the Defendants because the 24 90-day period within which service must be executed has nearly expired. While the 25 Court tolls Rule 4(m)’s time limit for service while it conducts its initial screening, see 26 Butler v. Nat’l Cmty. Renaissance of California, 766 F.3d 1191, 1204 n.8 (9th Cir. 2014) 27 (noting that “[o]ther federal circuit courts of appeals have held that the [90]–day service 28 period is tolled until the court screens a plaintiff’s in forma pauperis complaint and -3- 22-cv-702-MMA (DEB) 1 authorizes service of process”), Rule 4(m)’s service clock commences in an IFP case 2 once a summons issues and the U.S. Marshal is directed to effect service pursuant to Fed. 3 R. Civ. P. 4(c)(3). In cases involving a plaintiff proceeding IFP, a United States Marshal, 4 upon order of the court, serves the summons and the complaint. Fed. R. Civ. P. 4(c)(3) 5 (providing for service by a United States marshal or deputy marshal “if the plaintiff is 6 authorized to proceed in forma pauperis under 28 U.S.C § 1915.”); 28 U.S.C. § 1915(d) 7 (“The officers of the court shall issue and serve all process, and perform all duties in 8 [IFP] cases.”) 9 The Court therefore extends the time for service in this case for thirty (30) days 10 after the date of this Order pursuant to Rule 4(m). See Mann v. American Airlines, 324 11 F.3d 1088, 1090 (9th Cir. 2003) (holding that district court may, under the broad 12 discretion granted by Fed. R. Civ. P. 4(m), extend time for service). 13 14 CONCLUSION In light of the foregoing, the Court GRANTS Plaintiff’s Motion to proceed IFP 15 and for U.S. Marshal Service pursuant to 28 U.S.C. § 1915(d) and Fed. R. Civ. P. 4(c)(3). 16 The Court EXTENDS the time for service thirty (30) days and DIRECTS the 17 Clerk to re-issue a summons upon Defendants Lopez, Burke, Weiwel, Tovar, Narvaez, 18 Duarte, Martinez, and Allison as identified in Plaintiff’s First Amended Complaint (Doc. 19 No. 5) and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each 20 Defendant. In addition, the Clerk will provide Plaintiff with certified copies of this 21 Order, Plaintiff’s First Amended Complaint, and the re-issued summons so that he may 22 serve them upon Defendants Lopez, Burke, Weiwel, Tovar, Narvaez, Duarte, Martinez, 23 and Allison. Upon receipt of this “IFP Package,” and in no case later than 15 days after 24 receipt, Plaintiff must complete the Form 285s as completely and accurately as possible, 25 include an address where each Defendant may be served, see S.D. Cal. CivLR 4.1.c, and 26 return them to the United States Marshal according to the instructions provided by the 27 Clerk of Court in the letter accompanying the In Forma Pauperis Package. 28 The Court ORDERS the U.S. Marshal to serve a copy of the First Amended -4- 22-cv-702-MMA (DEB) 1 Complaint and summons upon Defendants Lopez, Burke, Weiwel, Tovar, Narvaez, 2 Duarte, Martinez, and Allison as directed by Plaintiff on the USM Form 285 provided to 3 him and file executed waivers or proofs of personal service upon each Defendant with the 4 Clerk of Court within 30 days of their return. Should any Defendant fail to return the 5 U.S. Marshal’s request for waiver of personal service within that time, the U.S. Marshal 6 shall instead file the completed Form USM 285 Process Receipt and Return with the 7 Clerk of Court, include the date the summons, complaint, and request for waiver was 8 mailed to that Defendant, and note that service upon that party remains unexecuted. All 9 costs of U.S. Marshal service will be advanced by the United States; however, if a 10 Defendant located within the United States fails, without good cause, to sign and return 11 the waiver requested by the Marshal on behalf of Plaintiff, the Court will impose upon 12 the Defendant any expenses later incurred in effecting service. See 28 U.S.C. § 1915(d); 13 Fed. R. Civ. P. 4(c)(3), (d)(2). 14 15 16 The Court DIRECTS the Clerk of Court to email a courtesy copy of this Order upon filing to the Civil Clerk for U.S. Marshal at Margaret.Addison@usdoj.gov. The Court ORDERS Defendants, once served, to respond to Plaintiff’s First 17 Amended Complaint and any subsequent pleading Plaintiff files in this matter in which 18 Defendants are named as a party within the time provided by the applicable provisions of 19 Federal Rules of Civil Procedure 12(a) and 15(a)(3). See 42 U.S.C. § 1997e(g)(2) (while 20 Defendants may occasionally be permitted to “waive the right to reply to any action 21 brought by a prisoner confined in any jail, prison, or other correctional facility under 22 section 1983,” once the Court has conducted its sua sponte screening Defendants are 23 required to respond). 24 The Court ORDERS Plaintiff, after service has been effected by the U.S. Marshal, 25 to serve upon Defendants, or if appearance has been entered by counsel, upon 26 Defendants’ counsel, a copy of every further pleading, motion, or other document 27 submitted for the Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must 28 include with every original document he seeks to file with the Clerk, a certificate stating -5- 22-cv-702-MMA (DEB) 1 the manner in which a true and correct copy of that document has been served on 2 Defendants or their counsel, and the date of that service. See S.D. Cal. CivLR 5.2. 3 4 IT IS SO ORDERED. Dated: October 17, 2022 5 _____________________________ 6 HON. MICHAEL M. ANELLO United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- 22-cv-702-MMA (DEB)
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