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Allen v. Commissioner of Arizona State Prison

United States District Court, D. Arizona

May 8, 2014

Donald Alphonso Allen, Plaintiff,
v.
Commissioner of Arizona State Prison; Pamela Rider; President of Management & Training Corporation, ASPC Kingman; CO Denoyer; Unknown Parties, Defendants.

REPORT AND RECOMMENDATION FOR DISMISSAL WITHOUT PREJUDICE FOR FAILURE TO SERVE

MARK E. ASPEY, Magistrate Judge.

TO THE HONORABLE G. MURRAY SNOW:

Plaintiff filed a complaint on March 11, 2013, alleging, inter alia, a cause of action pursuant to section 1983, regarding an incident which occurred on April 26, 2012, at the Arizona Department of Corrections facility in Kingman, Arizona. On March 11, 2013, Plaintiff was, and he is now, incarcerated in New Jersey. Plaintiff filed an amended complaint (Doc. 7) on May 20, 2013.

On July 16, 2013, the Court granted Plaintiff's motion for leave to proceed in this matter in forma pauperis and ordered Defendant Denoyer to answer the claim stated in Plaintiff's first amended complaint at Doc. 7.

The screening order states:

In his one-count First Amended Complaint, Plaintiff sues the following Defendants: John Doe Commissioner of the Arizona State Prison (John Doe Commissioner), Warden [] Rider, John Doe President of M.T.C. (John Doe President), Correctional Officer Denoyer, and "Captains and Sergeants, and L[ieu]tenants of the F[ir]st Shift Staff 1-10 I/J/S/A ABC Entities of Arizona State Prison Kingman Complex."
Plaintiff alleges that he was subjected to excessive force, in violation of the Eighth Amendment, when Defendant Denoyer[, ] while Plaintiff was being searched, released his canister of pepper spray into Plaintiff's face and immediately placed his restraints on Plaintiff. Plaintiff contends that his vision became impaired from the incident and he had to seek additional eye care....

Plaintiff claims that the post-incident investigation determined Defendant Denoyer had used excessive force, Plaintiff received a formal apology, and Defendant Denoyer was relieved of his duties for the remainder of his tour of duty that day. In addition, in response to Plaintiff's grievance regarding the incident, Defendant Rider stated that Defendant Denoyer's employment was terminated as a result of the incident.

Doc. 9.

The Court ordered all other defendants and claims stated in the first amended complaint (Doc. 7) be dismissed. The Court warned Plaintiff that his failure to obtain service of process on Defendant Denoyer within sixty days of the date that order was entered, i.e., by September 13, 2013, would result in the dismissal of Plaintiff's claims pursuant to Rule 4(m), Federal Rules of Civil Procedure, and Rule 16.2(b)(2)(B), Local Rules of Civil Procedure for the United States District Court for the District of Arizona. The Court also denied Plaintiff's motion for the appointment of counsel.

Plaintiff returned a service packet for Defendant Denoyer to the Court.

A second amended complaint (Doc. 11) was docketed without leave of the Court on August 8, 2013, naming as defendants Unknown Denoyer, Pamela Rider, Unknown Parties, Unknown Party (Commissioner of Arizona State Prison), Unknown Party (President of Management & Training Corporation), and ASPC Kingman Complex. Plaintiff was not entitled to docket another amended complaint without leave of the Court.

The address provided by Plaintiff for service on Defendant Denoyer was at the Arizona State Prison Complex in Kingman, Arizona. Service on Defendant Denoyer was returned as unexecuted on August 29, 2013. See Doc. 13. The return of service indicates that service documents were mailed to the Kingman prison and returned to the Marshal with a notation that Defendant Denoyer was no longer employed at the prison. Id.

On November 15, 2013, the Court issued an order requiring Plaintiff to show cause for the failure to serve Defendant Denoyer. See Doc. 16. In response, Plaintiff filed a motion (Doc. 18) seeking an extension of the time allowed to effect service, asserting that Plaintiff had no other address for Defendant Denoyer, but noting that he had filed a motion to compel the Arizona Department of Corrections, which is not a party to this matter, to disclose Defendant's last known address and to compel the Arizona Department of Corrections to "admit" that Defendant's employment was terminated as a result of the incident alleged by Defendant. In an order issued January 14, 2014, the Court directed ...


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