Solis v. Johnson

          REPORT AND RECOMMENDATION

          CAMILLE D. BIBLES, UNITED SLATES MAGISTRATE JUDGE

         TO THE HONORABLE ROSLYN O. SILVER:

         In an order (ECF No. 16) entered June 11, 2018, the Court ordered Defendants Acosta and Johnson to answer Counts One and Three, respectively, of Plaintiff's Second Amended Complaint. The Court also ordered an unknown defendant, later identified as Defendant Rowe (ECF No. 24), to answer Count Two of the Second Amended 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 Second Amended Complaint on a Defendant within 120 days of the filing of the Second Amended Complaint [November 30, 2017] 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. 16 at 16-17).

         Service was returned as unexecuted on Defendant Johnson on September 10, 2018. (ECF No. 26). On October 11, 2018, Defendants were required to submit Defendant Johnson's current work location or her last known address under seal. (ECF No. 32). Defendant Johnson's last known home address was provided under seal on November 14, 2018. (ECF No. 35). Service was again returned as unexecuted on Defendant Johnson on January 31, 2019, and February 6, 2019. (ECF No. 55; ECF No. 56). Accordingly, on April 30, 2019, Plaintiff was allowed until June 7, 2019, to show cause for his failure to timely effect service on Defendant Johnson. (ECF No. 111). In response to the Order to Show Cause Plaintiff asserts he can only locate Defendant Johnson if he is appointed counsel in this matter and notes he asked the United States Marshal “for any information to help find defendant.” (ECF No. 128).

         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 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). 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). The Arizona District Court judges 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). 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).

         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 Johnson and Plaintiff's claims against Defendant Johnson be dismissed without prejudice for Plaintiff's failure to timely effect service of ...