United States District Court, S.D. California
(1) DENYING PLAINTIFF’S MOTION TO COMPEL AS
MOOT [ECF NO. 20] AND (2)SUA SPONTE GRANTING PLAINTIFF AN
EXTENSION OF TIME TO SERVE DEFENDANTS MENDOZA AND SABATI
PURSUANT TO FED. R. CIV. P. 4(M)
Barbara L. Major United States Magistrate Judge.
August 21, 2015, Plaintiff Tony Roberts, a state prisoner
currently incarcerated at Richard J. Donovan Correctional
Facility (“RJD”), and proceeding pro se,
submitted a civil rights Complaint pursuant to 42 U.S.C.
§ 1983. ECF No. No. 1. Plaintiff alleges that
Defendants, various dental officials employed at California
Men’s Colony (“CMC”) and RJD,
“[f]ailed to provide constitutionally adequate dental
care, ” in violation of his Eighth Amendment rights.
See id. On March 9, 2016, the Court granted
Plaintiff’s motion to proceed in forma
pauperis (“IFP”), found Plaintiff’s
claims sufficient to survive the initial screening required
by 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and
directed the United States Marshal Service
(“USMS”) to effect service on Plaintiff’s
behalf pursuant to 28 U.S.C. § 1915(d) and Fed.R.Civ.P.
4(c)(3). ECF No. 8.
March 10, 2016, the Clerk issued a summons and prepared an
“IFP package” including certified copies of
Plaintiff’s Complaint, a U.S. Marshal Form 285
(“USMS Form 285”) for each Defendant named in the
Complaint, and a copy of the Court’s Order granting
Plaintiff leave to proceed IFP. See ECF Nos. 8 &
9. Service upon Defendants Hipp, Nguyen, Malek, Sanchez,
Behrens, Hensley, and Silveira was executed by the USMS and
waivers of personal service were filed on their behalf. ECF
Nos. 12-18. However, a summons was returned unexecuted as to
Defendants “N. Sabti” and “E.
Mandoza.” ECF Nos. 10-11; see also ECF No. 20,
Exh. A. The USMS notified Plaintiff that it was unable to
execute service upon those two Defendants at RJD because,
“per litigation coordinator, Defendant[s] [were] not
employed at location.” Id.
April 29, 2016, Plaintiff signed a “Motion for Order
Compelling Warden Daniel Paramo to Provide a Confidential
Memorandum Detailing the Last Known Address for Defendants
N. Sabti and E. Mandoza to the U.S. Marshal Services so that
They May Effect Service of Process Pursuant to Rule 4, Fed.
R. Civ. Proc., ” which the Court accepted on
discrepancy on May 24, 2016. ECF Nos. 19 & 20. On May 26,
2016, the Court ordered Defendants to respond to
Plaintiff’s motion. ECF No. 21. On June 3, 2016,
Defendants replied asserting that the litigation coordinator
at RJD “could find no individuals with the names N.
Sabti or E. Mandoza in the prison’s medical directory
or history, ” and that Plaintiff misspelled the names
of the above individuals. ECF No. 23 at 2. Defendants further
stated that “E. Mendoza” is currently
employed at the prison’s dental department; and that
“N. Sabati” worked at RJD in 2013, that
he subsequently retired, and that “[t]he litigation
coordinator [wa]s in the process of determining whether
service c[ould] be accepted on N. Sabati’s behalf at
the prison.” Id. (emphasis added). Defendants
also alleged that because Warden Paramo was not a party to
this action, the Court lacked jurisdiction to issue an order
to compel sought by Plaintiff. See id. Finally,
Defendants asserted that they provided the correct spelling
of Defendants’ last names in their response and that
Plaintiff could now complete the service of process.
Id. On June 17, 2016, Defendants advised Plaintiff
and the Court that the “prison will accept service on
N. Sabati’s behalf.” ECF No. 27. Accordingly, the
Court DENIES Plaintiff’s motion to compel the provision
of N. Sabati’s last known address as MOOT. Further,
because Defendant’s response provided the correct
spelling of Defendant Mendoza’s last name and confirmed
that he is currently employed at the RJD’s dental
department, the Court DENIES Plaintiff’s motion to
compel the provision of E. Mendoza’s last known address
as MOOT. Plaintiff must accurately complete the revised USMS
Form 285 provided to him pursuant to this Order and resubmit
it to the USMS for service.
the Court GRANTS Plaintiff a sixty day extension of time
pursuant to Fed.R.Civ.P. 4(m) to complete service upon
Defendants Mendoza and Sabati. Rule 4(m) provides the
Limit for Service.
If a defendant is not served within 90 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.
Fed. R. Civ. P. 4(m). District courts have broad discretion
under Rule 4(m) to extend time for service even without a
showing of good cause. In re Sheehan, 253 F.3d 507,
513 (9th Cir. 2001). Here, although Plaintiff does not
expressly seek a Rule 4(m) extension, good cause exists
warranting a short extension. See Walker v. Sumner,
14 F.3d 1415, 1422 (9th Cir. 1994), abrogated on other
grounds by Sandin v. Connor, 515 U.S. 472, 483-84
the Court hereby:
DENIES Plaintiff’s Motion to Compel as MOOT;
ORDERS the Clerk of Court is to provide Plaintiff with an
additional “IFP Package” consisting of: (1) this
Order; (2) a copy of the Court’s March 9, 2016 Order
Granting IFP and Directing U.S. Marshal Service [ECF No. 8];
(3) a certified copy of Plaintiff’s Complaint [ECF No.
1]; (4) a duplicate summons; and (5) a blank USMS Form 285
for purposes of reattempting service upon Defendants Mendoza
and Sabati; and
GRANTS Plaintiff an extension of time in which to effect
service upon Defendants Mendoza and Sabati pursuant to
Fed.R.Civ.P. 4(m). Plaintiff shall complete, as accurately
and clearly as possible, the new USMS Form 285 provided to
him, and shall return them to the USMS no later than July
IS FURTHER ORDERED pursuant to Fed.R.Civ.P. 4(c)(3), (m) and
28 U.S.C. § 1915(d), the U.S. Marshal shall, within 30
days of receiving Plaintiff’s updated USMS Form 285,
effect service of Plaintiff’s Complaint and summons
upon Defendants Mendoza and Sabati as directed by Plaintiff.
All costs of service shall be advanced by the United States
pursuant to the Court’s March 9, 2016 Order granting