United States District Court, D. Arizona
Martinho D. Rocha, Plaintiff,
Julia Barnett, et al., Defendants.
HONORABLE ROSLYN O. SILVER JUDGE.
REPORT AND RECOMMENDATION
Camille D. Bibles United Slates Magistrate Judge.
order (ECF No. 12) entered August 28, 2018, the Court ordered
Defendants Barnett and Corizon to answer Count One of
Plaintiff's Complaint. The Court further ordered:
If Plaintiff does not either obtain a waiver of service of
the summons or complete service of the Summons and Complaint
on a Defendant within 90 days of the filing of the Complaint
or within 60 days of the filing of this Order, whichever is
later, the action may be dismissed as to each Defendant not
served. Fed.R.Civ.P. 4(m); LRCiv 16.2(b)(2)(B)(i).
(ECF No. 12 at 7-8).
was returned as unexecuted on Defendant Barnett on October
29, 2018. (ECF No. 16). On February 5, 2019, Defendant
Corizon was required to submit Defendant Barnett's
current work location or her last known address under seal,
and the time allowed Plaintiff to serve Defendant Barnett was
extended to April 8, 2019. (ECF No. 22). Defendant
Barnett's last known home address and the address on file
with the Arizona Medical Board were both provided under seal
on February 18, 2019. (ECF No. 24). The United States Marshal
attempted service at each of these addresses on three
occasions and the Marshal was unable to effect service on
Defendant Barnett; service at these addresses was returned as
unexecuted on May 29, 2019. (ECF No. 29; ECF No. 30).
on June 3, 2019, the Court allowed Plaintiff until June 28,
2019, to show cause why Defendant Barnett and Plaintiff's
claims against Defendant Barnett should not be dismissed for
Plaintiff's failure to effect service of process on her
as required by the Court's orders at ECF No. 12 and ECF
No. 22 and Rule 4 of the Federal Rules of Civil Procedure.
(ECF No. 31). Plaintiff responded to the Order to Show Cause
on June 25, 2019, arguing that Defendant Barnett should not
be dismissed because she violated his Eighth Amendment
rights. (ECF No. 33). In a motion at ECF No. 34 Plaintiff
seeks an “order to produce contact information for Dr.
Julia Barnett from the American Medical Association.”
of a civil action for failure to serve is a matter within the
Court's discretion. See, e.g.,
Puett v. Blandford, 912 F.2d 270, 273 (9th Cir.
1990). In cases involving prisoner plaintiffs proceeding
in forma pauperis, the United States Marshal, upon
order of the Court, is authorized to serve the summons and
the complaint. See 28 U.S.C. § 1915(c);
Boudette v. Barnett, 923 F.2d 754, 757 (9th Cir.
[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. . . .
Puett, 912 F.2d at 275. So long as the prisoner has
furnished the information necessary to identify the
defendant, the Marshal's failure to effect service
“is automatically good cause within the meaning of Rule
4(j).” Sellers v. United States, 902 F.2d 598,
603 (7th Cir. 1990) (internal quotations omitted).
it remains Plaintiff's responsibility to provide the
United States Marshal with accurate and sufficient
information to effect service. See Walker v. Sumner,
14 F.3d 1415, 1422 (9th Cir. 1994), overruled on other
grounds by Sandin v. Conner, 515 U.S. 472 (1995).
See also Sims v. Wegman, 743 Fed.Appx. 897, 897 (9th
Cir. 2018). And the Court is not required to act as an
investigative body in ascertaining a correct address for a
defendant. See Fed. R. Civ. P. 4(c)(2);
Walker, 14 F.3d at 1422; Byrd v. Stone, 94
F.3d 217, 219 (6th Cir. 2006) (holding the court must take
“reasonable steps” to assist indigent plaintiffs
with service of process). The District Court judges of the
United States District Court for the District of Arizona have
concluded that “neither the [USMS] nor the Court may
engage in investigatory efforts on behalf of the parties to a
lawsuit as this would improperly place the Court in the role
of an advocate.” E.g. DeRoche v. Funkhouser,
2008 WL 42277659, at *1 (D. Ariz. 2008), citing Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (holding
that the Court should not assume the role of advocate for a
pro se litigant). See also Pember v. Ryan, 2014 W L
3397735, at *2-3 (D. Ariz. 2014); Allen v. Unknown
Party, 2014 WL 4980857, at *4 (D. Ariz. 2014);
Johnson v. Clark, 2013 WL 646022, at *5 (D. Ariz.
2013); Ramirez v. Denver Health Med. Ctr., 2006 WL
2527965, at *3 (D. Colo. 2006). The United States Supreme
Court has made clear that federal “judges have no
obligation to act as counsel or paralegal to pro se
litigants.” Pliler v. Ford, 542 U.S. 225, 231
(2004). It is not a federal judge's role or
responsibility to investigate a defendant's whereabouts
so a plaintiff may serve process. This degree of involvement
“would undermine [trial] judges' role as impartial
decision makers.” Id. If the Court is
satisfied that the Marshals have fulfilled their obligation
to search for a viable address where a defendant can be
served, such as by securing the last known address from the
employer at the time of the incident giving rise to the
claim, then it acts within its discretion to dismiss the
action against a defendant. See Fed. R. Civ. P. 4(m)
(the court “must extend the time for service for an
appropriate period” (emphasis added)). See Penton
v. Pool, 724 Fed.Appx. 546, 551 (9th Cir. 2018).
IT IS RECOMMENDED that Defendant Barnett and
Plaintiffs claims against Defendant Barnett be dismissed
without prejudice for Plaintiffs failure to timely effect
service of process on Defendant Barnett.
recommendation is not an order that is immediately appealable
to the Ninth Circuit Court of Appeals. Any notice of appeal
pursuant to Rule 4(a)(1), Federal Rules of Appellate
Procedure, should not be filed until entry of the District
to Rule 72(b), Federal Rules of Civil Procedure, the parties
shall have fourteen (14) days from the date of service of a
copy of this recommendation within which to file specific
written objections with the Court. Thereafter, the parties
have fourteen (14) days within which to file a response to
the objections. Pursuant to Rule 7.2, Local Rules of Civil
Procedure for the United States District Court for ...