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Murschel v. Paramo

United States District Court, S.D. California

August 27, 2019

LANCE MURSCHEL, CDCR #P-04895 Plaintiff,
v.
D. PARAMO, Warden, et al., Defendants.

          ORDER: 1) GRANTING MOTION FOR EXTENSION OF TIME TO FILE RESPONSE TO MOTION TO DISMISS; AND 2) DIRECTING DEPUTY ATTORNEY GENERAL TO PROVIDE DEFENDANTS' FORWARDING ADDRESSES IN CONFIDENTIAL MEMO

          HON. BARRY TED MOSKOWITZ UNITED STATES DISTRICT JUDGE

         Lance Murschel (“Plaintiff”), currently incarcerated at the Richard J. Donovan Correctional Facility (“RJD”), is proceeding pro se and in forma pauperis (“IFP”) in the civil rights action filed pursuant 42 U.S.C. § 1983.

         I. Procedural History

         On April 8, 2019, Defendant Melton filed a “Motion to Dismiss Plaintiff's Complaint.” (ECF No. 31.) A hearing date was set for May 31, 2019. (Id. at 1.) However, instead of filing a response to Defendant's motion, Plaintiff filed a motion seeking an extension of time to file an opposition, along with a motion to appoint counsel. (ECF Nos. 34, 36.)

         On June 4, 2019, the Court granted Plaintiff's request for an extension of time and re-set the hearing date for Defendant Melton's Motion to July 26, 2019. (ECF No. 37.) In addition, the Court reviewed the docket and noted that two other Defendants, Trimble and Brown, have not yet been served in this action. (ECF Nos. 26, 27.) The Court also issued an Order to Show Cause (“OSC”) why these Defendants should not be dismissed for failing to prosecute. (ECF No. 39.)

         On August 6, 2019, Plaintiff filed a “Motion for Late Filing of Response to Defendant's Melton to Dismiss Complaint, Motion for Reservice of Defendants Trimble & Brown; and Motion for Response to Order to Show Case to Dismiss.” (ECF No. 39.)

         I. Motion for Extension of Time to File Opposition to Motion to Dismiss

          As stated above, Plaintiff has filed a request seeking an extension of time to file an opposition to Defendant's motion indicating that the inmate who had been assisting him in this matter was transferred to another prison and he has had inadequate access to the prison's law library. (ECF No. 39 at 2.)

         “‘Strict time limits ... ought not to be insisted upon' where restraints resulting from a pro se ... plaintiff's incarceration prevent timely compliance with court deadlines.” Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987) (citing Tarantino v. Eggers, 380 F.2d 465, 468 (9th Cir. 1967); see also Bennett v. King, 205 F.3d 1188, 1189 (9th Cir. 2000). Accordingly, Plaintiff's Motion for Extension of Time is GRANTED. The Court will reschedule this matter to be set for Friday, October 18, 2019. The matter will be taken under submission at that time and no oral argument will be necessary.

         II. Motion for Extension of Time to Serve Defendants Trimble and Brown

          Plaintiff also seeks an extension of time to respond to the Court's OSC and assistance in serving Defendants Trimble and Brown. Plaintiff's previous attempts at serving these two parties were unsuccessful. As to Defendant Trimble, the U.S. Marshal returned proof of service as unexecuted on March 5, 2019, with a notation that the litigation coordinator at RJD indicated that Defendant Trimble was “not employed, could not locate by that name.” (ECF No. 26). As to Defendant Brown the returned proof of service indicates that the RJD litigation coordinator “could not locate by that name.” (ECF No. 17.)

[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 the 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).

         In cases involving a plaintiff proceeding IFP, a United States Marshal, upon order of the court, serves the summons and the complaint. Fed.R.Civ.P. 4(c)(3) (providing for service by a United States marshal or deputy marshal “if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C § 1915.”); 28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all process, and perform all duties in [IFP] 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 and ... should not be penalized by having his action dismissed for failure to effect service where the U.S. Marshal or the 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, 275 (9th Cir. 1990)), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995). “So long as ...


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