Rocha v. Barnett

          THE HONORABLE ROSLYN O. SILVER JUDGE.

          REPORT AND RECOMMENDATION

          Camille D. Bibles United Slates Magistrate Judge.

         In an 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).

         Service 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).

         Accordingly, 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.”

         Dismissal 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. 1991).

[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).

         However, 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).

         Accordingly, 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.

         This 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 Court's judgment.

         Pursuant 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 ...