United States District Court, S.D. California
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
BARRY TED MOSKOWITZ UNITED STATES DISTRICT JUDGE
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.
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.)
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.
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.)
Motion for Extension of Time to File Opposition to Motion to
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.)
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.
Motion for Extension of Time to Serve Defendants Trimble and
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).
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 ...