United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Camille D. Bibles United States Magistrate Judge.
HONORABLE SUSAN M. BRNOVICH:
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
(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);
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).
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
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 Elias and
Plaintiffs claims against Defendant Elias be
dismissed without prejudice for Plaintiffs
failure to ...