United States District Court, D. Arizona
REPORT AND RECOMMENDATION
CAMILLE D. BIBLES, UNITED SLATES MAGISTRATE JUDGE
THE HONORABLE ROSLYN O. SILVER:
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.
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).
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).
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 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).
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.
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 ...