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Pember v. Ryan

United States District Court, D. Arizona

July 11, 2014

Jay Lynn Pember, Plaintiff,
v.
Charles L. Ryan, et al., Defendants.

MEMORANDUM OF DECISION AND ORDER

STEPHEN M. McNAMEE, District Judge.

There are two motions pending before the Court, Plaintiff Jay Lynn Pember's ("Plaintiff") Motion for Extension of Time to Serve Defendant Matthew A. Musson ("Musson") (Doc. 64) and a Report and Recommendation issued by Magistrate Judge Anderson (Doc. 61).[1]

BACKGROUND

On November 28, 2011, Plaintiff commenced this matter by filing a Prisoner's Civil Rights Complaint pursuant to 42 U.S.C. § 1983. (Doc. 1.) On June 26, 2012 the case was referred to the Court's Prisoner Early Mediation Pilot Program, but it was withdrawn from the program on September 30, 2012. (Docs. 7, 11.) On February 13, 2013, Plaintiff filed the First Amended Complaint in which he asserts two claims. (Doc. 18.) First, Plaintiff alleges deliberate indifference to his medical needs in violation of the Eighth Amendment based on the allegations that he received inadequate medical care for injuries he suffered to his neck when a prison official stepped on it during a prison riot in 2004. (Id. at 11-15.) Second, Plaintiff alleges that his confinement for almost four years in the Browning Supermax Unit of the Arizona Department of Corrections ("ADOC") is a violation of the Due Process Clause. (Id. at 15-22.)

On April 5, 2013, the district judge screened Plaintiff's First Amended Complaint pursuant to 28 U.S.C. § 1915A(a) and ordered service upon Defendants Baird, Stacey Crabtree, Danels, Ford, Freeland, Heet, Al Ramos and Wood (collectively "Defendants"), including Defendant Payne and Facility Health Administrator John Doe. (Doc. 19.) Facility Health Administrator John Doe was later dismissed from the case. Service to Defendant Payne was returned unexecuted. (Doc. 21.) The Process Receipt and Return indicated that Defendant Payne no longer worked with the ADOC and a forwarding address was not available. (Id.) Consequently, on August 2, 2013, Plaintiff filed a motion requesting Court's assistance in locating Defendant Payne (Doc. 33) which the Court granted (Doc. 37). The Court directed Defendants to provide a current work address for Defendant Payne or, if he was no longer employed by ADOC, a last known home address, to be filed under seal. (Id.) Defendants provided Defendant Payne's last known home address under seal, however on November 19, 2013, the United States Marshals Service ("Marshals") filed a Process Receipt and Return stating that Defendant Payne no longer lived at that address. (Doc. 49.)

With regard to Defendant Musson, on May 23, 2013, Plaintiff filed a Motion to substitute Defendant Musson for Defendant John Doe in Plaintiff's Eight Amendment claim. (Doc. 20.) The magistrate judge granted this Motion on July 8, 2013, and ordered service upon Defendant Musson (Doc. 29.) In the Order, the Court warned Plaintiff that "if Plaintiff does not either obtain a waiver of service of the summons or complete service of the Summons and First Amended Complaint on Defendant Musson within 120 days of the filing of the First Amended Complaint or within 60 days of the filing of this Order, whichever is later, the action may be dismissed as to Defendant Musson." (Id. at 3.)

On September 26, 2013, more than 60 days after the Court's July 8, 2013 Order, and more than 120 days after the First Amended Complaint was filed, the Marshals filed a Process Receipt and Return stating that Defendant Musson is on military leave and is no longer at the address Plaintiff provided. (Doc. 41.) Plaintiff then filed a Motion requesting the Court's Assistance in Locating Defendant Musson for Service. (Doc. 42.) The Court denied Plaintiff's Motion and ordered Plaintiff to show cause why Defendant Payne and Defendant Musson should not be dismissed without prejudice for failure to serve pursuant to Rule 4(m) of the Federal Rules of Civil Procedure and Rule16.2(b)(2)(B)(i) of the Local Rules of Civil Procedure. (Doc. 51.) Plaintiff then filed a Motion to Dismiss Defendant Payne and Waive Service of Defendant Musson. (Doc. 52.) Plaintiff also filed his Response to the Order to Show Cause. (Doc. 56.)

On February 24, 2014, the magistrate judge filed a Report and Recommendation with this Court recommending dismissal of Defendant Payne pursuant to Plaintiff's Motion to Dismiss Defendant Payne and Waive Service of Defendant Musson, and dismissal of Defendant Musson for failure to serve within the time limits of Rule 4(m) of the Federal Rule of Civil Procedure and Rule 16.2(b)(2)(B)(i) of the Local Rules of Civil Procedure. (Doc. 61.) Between September 26, 2013, when service to Defendant Musson returned unexecuted and February 24, 2014, when the magistrate judge issued the Report and Recommendation, Plaintiff did not take any additional steps to ascertain Defendant Musson's address. Instead, he asked the Court to assist him in locating Defendant Musson, but the Court denied Plaintiff's request. (Doc. 42.) However, after the Report and Recommendation was issued, Plaintiff started writing letters to prison authorities enquiring about Defendant Musson's whereabouts. (Doc. 64 at 5-8.)

On March 10, 2014, Plaintiff received a response stating that Defendant Musson was back from military leave. (Doc. 64 at 8.) On March 10, 2014, Plaintiff filed his Objections to the Report and Recommendation. (Doc. 62.) Further, based on the information that Defendant Musson is back from military leave, on March 21, 2014, Plaintiff filed a Motion for Extension of Time to Serve Defendant Musson Who has Returned From Military Leave. (Doc. 64.)

STANDARD OF REVIEW

I. Report and Recommendation

When reviewing a magistrate judge's Report and Recommendation, this Court "shall make a de novo determination of those portions of the report... to which objection is made, " and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C); see also Baxter v. Sullivan , 923 F.2d 1391, 1394 (9th Cir. 1991) (citing Britt v. Simi Valley Unified Sch. Dist. , 708 F.2d 452, 454 (9th Cir. 1983)).

II. Extension of Time for Service

In cases involving plaintiffs proceeding in forma pauperis, the Marshals, upon order of the Court, are authorized to serve the summons and the complaint. See 28 U.S.C. § 1915(c); see also Boudette v. Barnett , 923 F.2d 754, 757 (9th Cir. 1991). A pro se plaintiff proceeding in forma pauperis is entitled to rely on the Marshals for service, and such plaintiff's action should not be dismissed for failure to effect service because of the Marshals failure to perform their duties. Puett v. Blandford , 912 F.2d 270, 275 (9th Cir. 1990). However, it remains Plaintiffs' responsibility to provide the Marshals with accurate and sufficient information to effect service. Allen v. Commissioner of Arizona State Prison, No. ...


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