United States District Court, S.D. California
ORDER GRANTING IN PART PLAINTIFF'S MOTION
REQUESTING ORDER REQUIRING DEFENSE COUNSEL PROVIDE FORWARDING
ADDRESS [ECF NO. 34]
MITCHELL D. DEMBIN UNITED STATES MAGISTRATE JUDGE
24, 2016, Plaintiff, a prisoner at Richard J. Donovan
Correctional Facility (“RJD”) proceeding pro
se and in forma pauperis (“IFP”),
initiated this case by filing a civil rights complaint. (ECF
No. 1). On January 4, 2017, Plaintiff filed a “Request
for Order Directing Defense Counsel Provide Confidential
Addresses to the U.S. Marshals Service” and requested
an extension of time to serve four defendants. (ECF No. 19).
On January 9, 2017, this Court denied Plaintiff's motion.
(ECF No. 20). On January 17, 2017, Plaintiff constructively
filed a “Renewed Motion Requesting Order Directing
Defense Counsel Provide Confidential Addresses to U.S.
Marshals for Service.” (ECF No. 26). There are
seventeen defendants in this case and fourteen have filed a
waiver of service and a motion to dismiss the case. (ECF Nos.
4-16, 22, 28). On February 28, 2017, the summons was returned
unexecuted as to Defendant Brown. (ECF No. 29).
March 7, 2017, Plaintiff signed a “Motion Requesting
Order Requiring Defense Counsel Provide Forwarding Address,
” which the Court accepted on discrepancy on March 15,
2017. (ECF Nos. 33, 34). Plaintiff now seeks to serve
Defendants Brown and Limon and requests that the Court order
defense counsel to provide their last known addresses to the
U.S. Marshal Service, so that the U.S. Marshal can serve
these defendants. (ECF No. 34 at 4). Plaintiff also requests
an extension of time to serve these defendants.
support, Plaintiff explains that he sent a letter to the U.S.
Marshal Service on February 10, 2017, inquiring about the
status of service as to Defendants Limon and Brown.
(Id. at 3, 6). Plaintiff has not received any
information regarding the status of service as to Defendant
Limon. (Id. at 3). Plaintiff's summons was
returned unexecuted as to Defendant Brown, indicating that
Defendant Brown “retired from CDCR” and that
there was “no forwarding address provided.”
(Id. at 8).
REQUEST TO PROVIDE ADDRESSES TO U.S.
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)(3); 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.”). “An incarcerated pro se plaintiff
proceeding in forma pauperis is entitled to rely on the U.S.
Marshal for service of the summons and complaint and . . .
should not be penalized by having his action dismissed for
failure to effect service where the U.S. Marshal or court
clerk has failed to perform his duties.” Walker v.
Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting
Puett v. Blandford, 912 F.2d 270, 273 (9th Cir.
1990), abrogated on other grounds by Sandin v.
Conner, 515 U.S. 472 (1995)). “So long as the
prisoner has furnished the information necessary to identify
the defendant, the marshal's failure to effect service is
‘automatically good cause . . . .”
Walker, 14 F.3d at 1422 (quoting Sellers v.
United States, 902 F.2d 598, 603 (7th Cir. 1990)).
motion is premature as to Defendant Limon because Plaintiff
has not received notification from the U.S. Marshals that the
summons was returned unexecuted as to Defendant Limon and
that the U.S. Marshals' failed to serve him. (ECF No. 34
at 3). Therefore, Plaintiff has not shown good cause and
Plaintiff's motion is DENIED WITHOUT PREJUDICE as to
has provided information “necessary to sufficiently
identify” Defendant Brown as a supervising correctional
officer at RJD when the alleged claims occurred. Plaintiff
has provided this information to the United States Marshal
Service and already has attempted to effect service upon
Defendant Brown at RJD, his last known place of employment.
The Court finds that Plaintiff should not be penalized with
dismissal as to Defendant Brown simply because he no longer
is employed at RJD and GRANTS Plaintiff's motion as to
only reason the U.S. Marshal was unable to effect service
upon Defendant Brown is due to his retirement and the
presumably confidential nature of his forwarding address.
Accordingly, as long as the privacy of Defendant Brown's
forwarding address can be preserved, Plaintiff is entitled to
rely on the U.S. Marshal to effect service upon Defendant
Brown on his behalf. See Puett, 912 F.2d at 275. The
Court hereby directs the Deputy Attorney General assigned to
this case to contact the Litigation Coordinator at RJD and/or
the CDCR's Legal Affairs Division and to ask him or her
to provide any forwarding address in his or her possession,
or which is obtainable from the CDCR's personnel records
for Defendant Brown, now retired, and to forward that address
to the U.S. Marshal in a confidential memorandum
indicating that the summons and Plaintiff's complaint is
to be served upon Defendant Brown at that address. The U.S.
Marshal Service must effectuate service using the new address
without additional paperwork from Plaintiff.
REQUEST TO EXTEND TIME TO SERVE DEFENDANTS
also requests the Court to grant him an extension of time to
serve Defendants Limon and Brown. (ECF No. 34 at 4). Pursuant
to Federal Rule of Civil Procedure 4:
[i]f 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 order.
Fed. R. Civ. P. 4(m).
Court previously granted Plaintiff an extension of time to
serve Defendants Brown and Limon. (ECF No. 27 at 4).
Plaintiff has informed the Court that since the Court's
January 31, 2017, Order [ECF No. 27], he has received notice
that the summons was returned unexecuted as to Defendant
Brown, but not as to Defendant Limon. (ECF No. 34 at 3, 6).
Accordingly, the Court finds good cause ...