United States District Court, D. Arizona
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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