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Bryant v. Ochoa

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


May 3, 2010

STANFORD P. BRYANT, PLAINTIFF,
v.
TIM OCHOA, CHIEF DEPUTY WARDEN, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Peter C. Lewis U.S. Magistrate Judge United States District Court

ORDER: GRANTING PLAINTIFF'S MOTION FOR ORDER DIRECTING U.S. AND SECOND AMENDED MARSHAL TO SERVE SUMMONS COMPLAINT AND EXTENSION OF TIME TO DO SO (DOC. 155)

On April 5, 2010, Plaintiff moved this Court for issuance of an Order directing the U.S. Marshal to re-attempt service as to the remaining unserved defendant, Stuart E. Best, and for an extension of time to do so. (Doc. 155.)

Rule 4 of the Federal Rules of Civil Procedure provides that:

[i]f service of the summons and complaint is not made upon the defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend time for service for an appropriate period.

FED.R.CIV.P. 4(m).

In cases involving a plaintiff proceeding IFP, a United States Marshal, upon order of the court, shall serve the summons and the complaint. FED.R.CIV.P. 4(c)(2); 28 U.S.C. § 1915(d) (in IFP proceedings, "[t]he officers of the court shall issue and serve all process, and perform all duties in such cases."). "'[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the summons and complaint.'" Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990)), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995). In order to allow 28 U.S.C. §§ 1915 and 1915A to operate harmoniously with FED.R.CIV.P. 4(m), where a necessary delay occurs, Rule 4(m)'s 120-day time for service may be suspended for a time by the Court. SeeUrrutia v. Harrisburg County Police Dept., 91 F.3d 451, 459-60 (3rd Cir. 1996); see also Shabazz v. Franklin, 380 F. Supp. 2d 793, 799-800 (N.D. Texas 2005); Warren v. Ruffcorn, 2001 WL 34043449 at *4 (D. Oregon 2001) (unpublished).

Good cause appearing, Plaintiff's Motion for an Order Directing U.S. Marshal Service as to Plaintiff's Second Amended Complaint is hereby GRANTED.

Conclusion and Order

Accordingly, the Court hereby GRANTS Plaintiff's Motion for Order Directing U.S. Marshal Service as to Plaintiff's Second Amended Complaint on Defendant Best.

The Clerk is ORDERED to issue the summons as to Defendant Best and to provide Plaintiff with an additional "IFP Package" consisting of: (1) this Order; (2) the Court's April 17, 2007 Order Granting IFP (Doc. No. 5); (3) a certified copy of Plaintiff's Second Amended Complaint (Doc. No. 44); (4) the summons; and (5) a blank USM Form 285 for the purpose of re-attempting service as to Defendant Stuart E. Best. Plaintiff shall complete the Form 285 and forward it to the U.S. Marshal. The U.S. Marshal shall serve a copy of the Second Amended Complaint upon Defendant Best as directed by Plaintiff on the U.S. Marshal Form 285. All costs of service shall be advanced by the United States. See 28 U.S.C. § 1915(d); FED. R. CIV. P. 4(c)(2). Plaintiff shall serve upon Defendant or, if appearance has been entered by counsel, upon Defendant's counsel, a copy of every further pleading or other document submitted for consideration of the Court. Plaintiff shall include with the original paper to be filed with the Clerk of the Court a certificate stating the manner in which a true and correct copy of any document was served on Defendant Best, or counsel for Defendant, and the date of service. Any paper received by the Court which has not been filed with the Clerk or which fails to include a Certificate of Service will be disregarded.

IT IS SO ORDERED.

20100503

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