Davis v. Penzone

          REPORT AND RECOMMENDATION

          Camille D. Bibles United States Magistrate Judge.

         THE HONORABLE SUSAN M. BRNOVICH:

         In an order (ECF No. 80) entered February 25, 2019, the Court ordered Defendants Elias, Miceli, Murphy, Hollingshead, Tijerina, Fisk, and Karas to answer the First Amendment claims stated in Counts One, Three, Five, and Seven of Plaintiff's First Amended Complaint at ECF No. 22. The Order at ECF No. 80 states:

(5) The Clerk of Court must send Plaintiff a service packet including the First Amended Complaint (Doc. 20), this Order, the January 11, 2018 R&R (Doc. 21), and both summons and request for waiver forms for Defendants Elias, A6941, Miceli, Murphy, Hollingshead, Tijerina, Fisk, and Karas.

(6) Plaintiff must complete and return the service packet to the Clerk of Court within 21 days of the date of filing of this Order. The United States Marshal will not provide service of process if Plaintiff fails to comply with this Order.

(7) 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 [by April 26, 2019], 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)(ii).

         Prior to the issuance of the Order at ECF No. 80, a defendant was required to disclose the last known home address of Defendant Elias under seal; service on Defendant Elias at this address was returned as unexecuted on February 5, 2018. (ECF Nos. 14, 15, 26). In a Report and Recommendation docketed March 12, 2018, Magistrate Judge Bade recommended Defendant Elias be dismissed from this matter for Plaintiff's failure to serve this defendant. (ECF No. 36). In the Order at ECF No. 80 the Court rejected Magistrate Judge's Bade recommendation that Defendant Elias be dismissed as a defendant and allowed Plaintiff until April 26, 2019, to serve Defendant Elias. Service on Defendant Elias at her last known home address was returned as unexecuted on March 28, 2019. (ECF No. 85).

         On May 10, 2019, the undersigned denied Plaintiff's motion at ECF No. 94, asking the Court to “direct” the United States Marshal to obtain Defendant Elias' address from the Arizona Department of Motor Vehicles and allowed Plaintiff until June 7, 2019, to show cause why Defendant Elias and Plaintiff's claims against her should not be dismissed for Plaintiff's failure to serve this Defendant. (ECF No. 96). In response to the Order at ECF No. 96 Plaintiff argues he is entitled to rely on the United States Marshal for service and that “the USMS was provided with Defendant's full name and last known address, which should have been sufficient to effectuate service.” (ECF No. 101 at 3). Plaintiff further asserts “the USMS is in the business of locating individuals, therefore it would not be out of the ordinary for them to conduct a skip trace on Defendant Elias in order to obtain a current address to effectuate service.” (ECF No. 101 at 4).

         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 Elias and Plaintiffs claims against Defendant Elias be dismissed without prejudice for Plaintiffs failure to ...