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Johnson v. Ryan

United States District Court, D. Arizona

March 28, 2019

Richard Johnson, Plaintiff,
v.
Charles L. Ryan, et al., Defendants.

          ORDER

          Eileen S. Willett United States Magistrate Judge.

         On September 27, 2018, Plaintiff Richard Johnson, who is confined in the Arizona State Prison Complex (ASPC)-Eyman in Florence, Arizona, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1). In its screening Order filed on November 14, 2018, the Court ordered Defendant Sergeant B to answer Count Two (Doc. 9 at 11) and allowed Plaintiff to file a Notice of Substitution within 120 days to ascertain and identify the correct name of Defendant Deputy Warden Unknown, against whom Plaintiff has stated a cause of action in Counts One and Two (Doc. 9 at 8-9, 11).

         Service was returned unexecuted as to Defendant Sergeant B. with the notation “Spoke to warden's office, ASPC Florence. Unable to determine [sic] who “SGT. B” is. Need more information to be able to serve.” (Doc. 19 at 1).

         Plaintiff timely filed a Notice of Substitution pursuant to Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999), providing the full name of Defendant Deputy Warden Unknown as Defendant Deputy Warden Montono (Doc. 13 at 1). The Court will order Plaintiff to lodge a First Amended Complaint substituting Defendant Deputy Warden Montono for all references to Defendant Deputy Warden Unknown. The Court will review the First Amended Complaint for compliance with the Court's Order, order that the First Amended Complaint be filed, and then order the Clerk of Court to provide Plaintiff with a service packet to be filled out by the Plaintiff and returned to the Clerk of Court for the United States Marshal Service (“USMS”) to effectuate service of process on Defendant Deputy Warden Montono.

         Pending before the Court is Plaintiff's second “Notice of Substitution” (Doc. 22). Plaintiff requests permission to substitute the full name of “Special Security Unit (“SSU”) Sergeant (“Sgt.”) Belt” for Defendant Sergeant B. named in Plaintiff's Complaint (Doc. 1). The Court deems Plaintiff's second Notice to be a motion to amend his Complaint, which is timely filed pursuant to the Court's Scheduling Order (Doc. 18 at 4). No. objection has been filed to this Notice. The Court will grant the motion to amend the Complaint and order Plaintiff to lodge a First Amended Complaint in accordance with LRCiv 15.1(a) which also provides the correct name of Defendant Sgt. B. where all references to Defendant Sgt. B. are made. The Court will review the First Amended Complaint for compliance with the Court's Order, order the First Amended Complaint to be filed, and then order the Clerk of Court to provide Plaintiff with a service packet to be filled out by the Plaintiff and returned to the Clerk of Court for USMS to effectuate service of process on Defendant SSU Sgt. Belt.

         Finally, Plaintiff has filed Plaintiff's Request for Status of: First Set of Interrogatories to Defendants Ryan, Crabtree, and Days (Doc. 25). Plaintiff asks the Court to inform Plaintiff as to the status of Defendant's responses to Plaintiff's interrogatories. The Court is not the repository for such requests and refers Plaintiff to the Fed.R.Civ.P. which address discovery, as well as the Court's Scheduling Order (Doc. 18). Plaintiff's Request (Doc. 25) will be denied.

         For the reasons set forth above, IT IS ORDERED granting Plaintiff's Notices (Docs. 13, 22).

         IT IS FURTHER ORDERED denying Plaintiff's “Request for Status of: First Set of Interrogatories to Defendants Ryan, Crabtree, and Days” (Doc. 25).

         IT IS FURTHER ORDERED that Plaintiff lodge with the Clerk of Court a First Amended Complaint in accordance with LRCiv. 15.1(a) which ONLY substitutes the names of Defendants Sgt. B. and Deputy Warden Unknown with the full names of each Defendant as set forth in each of the Plaintiff's Notices (Docs. 13, 22) no later than April 29, 2019. Failure to timely lodge a First Amended Complaint may result in dismissal of Defendants SSU Sgt. Belt and Deputy Warden Montono from the case. The Court has not approved substantive changes to be added or deletions in the First Amended Complaint beyond the substitution of Defendants' full names as identified in Plaintiff's Notices.

         IT IS FURTHER ORDERED that, upon Plaintiff's lodging of his First Amended Complaint, the Court will review the First Amended Complaint and order that it be filed or stricken, based upon compliance with the Court's orders herein. If the Court orders the First Amended Complaint as lodged to be filed, the Clerk of Court shall send to Plaintiff this Order, the filing Order, and a copy of the Marshal's Process Receipt & Return form (USM-285) and Notice of Lawsuit & Request for Waiver of Service of Summons form for Defendants SSU Sgt. Belt and Deputy Warden Montono.

         IT IS FURTHER ORDERED that Plaintiff complete[1] and return the service packet to the Clerk of Court within 21 days of the sending of the packets. The United States Marshal will not provide service of process if Plaintiff fails to comply with this Order. If Plaintiff does not either obtain a waiver of service of the summons or complete service of the Summons and First Amended Complaint on a Defendant within 90 days of the filing of the First Amended Complaint, the action may be dismissed as to each Defendant not served. Fed.R.Civ.P. 4(m); LRCiv 16.2(b)(2)(B)(ii).

         IT IS FURTHER ORDERED that the United States Marshal must retain the Summons, a copy of the First Amended Complaint, and a copy of this Order for future use. The United States Marshal must notify Defendants of the commencement of this action and request waiver of service of the summons pursuant to Rule 4(d) of the Federal Rules of Civil Procedure. The notice to Defendants must include a copy of this Order. The Marshal must immediately file signed waivers of service of the summons. If a waiver of service of summons is returned as undeliverable or is not returned by a Defendant within 30 days from the date the request for waiver was sent by the Marshal, the Marshal must:

(a) personally serve copies of the Summons, First Amended Complaint, and this Order upon Defendants pursuant to Rule 4(e)(2) of the Federal Rules of Civil Procedure; and
(b) within 10 days after personal service is effected, file the return of service for each Defendant, along with evidence of the attempt to secure a waiver of service of the summons and of the costs subsequently incurred in effecting service upon each Defendant. The costs of service must be enumerated on the return of service form (USM-285) and must include the costs incurred by the Marshal for photocopying additional copies of the Summons, First Amended Complaint, or this Order and for preparing new process receipt and return forms (USM-285), if required. Costs of service will be taxed ...

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