United States District Court, D. Arizona
Honorable Eileen S. Willett United States Magistrate Judge.
January 17, 2019, the Court ordered Plaintiff to show cause
why this case should not be dismissed as to Defendants
Livingston and Torrez pursuant to Fed.R.Civ.P. 4(m) (Doc.
20). Plaintiff timely filed his “Motion of
‘Affidavit of Service and Supportive Good Cause of
Pending Sumons.'” (Doc. 21). Plaintiff states that
he is not trained in the law and requests an extension of
time for service of process (Id. at 5). Plaintiff
requests the Court to order either the United States Marshal
Service (“USMS”) or Corizon Health Services Inc.
to provide the Court with the information necessary to
effectuate service of process upon Defendants Livingston and
Fed.R.Civ.P. 4(m), “[i]f a defendant is not served
within 90 days after the complaint is filed, the court - on
motion or on its own after notice to the plaintiff - must
dismiss the action without prejudice against that defendant
or order that service be made within a specified time.”
However, “if the plaintiff shows good cause for the
failure, the court must extend the time for service for an
appropriate period.” Id.
Ninth Circuit Court of Appeals has explained, “Rule
4(m) requires a two-step analysis in deciding whether or not
to extend the prescribed time period for the service of a
complaint.” In re Sheehan, 253 F.3d 507, 512
(9th Cir. 2001) (citing Fed.R.Civ.P. 4(m) and Petrucelli
v. Bohringer & Ratzinger, GMBH, 46 F.3d 1298, 1305
(3d Cir. 1995)). “First, upon a showing of good cause
for the defective service, the court must extend the time
period. Second, if there is no good cause, the court has the
discretion to dismiss without prejudice or to extend the time
period.” Id. The Ninth Circuit has found it
“unnecessary, however, to articulate a specific test
that a court must apply in exercising its discretion under
Rule 4(m), ” noting “only that, under the terms
of the rule, the court's discretion is broad.”
Id. at 513. Yet “no court has ruled that the
discretion is limitless. In making extension decisions under
Rule 4(m) a district court may consider factors
‘like a statute of limitations bar, prejudice to the
defendant, actual notice of a lawsuit, and eventual
service.'” Efaw v. Williams, 473 F.3d
1038, 1041 (9th Cir. 2007) (emphasis added).
pro se prisoner proceeding in forma pauperis has
provided to the USMS sufficient information to effectuate
service on a defendant, the USMS' failure to effect
service is “automatically good cause” to extend
the service deadline. Walker v. Sumner, 14 F.3d
1415, 1422 (9th Cir. 1994) (quoting Sellers v. United
States, 902 F.2d 598, 603 (7th Cir. 1990)),
abrogated on other grounds by Sandin v. Connor, 515
U.S. 472 (1995). But where a prisoner fails to provide the
USMS with accurate and sufficient information to effect
service of the summons and complaint, a court's sua
sponte dismissal of the unserved defendant(s) is appropriate.
not the Court's role to assist Plaintiff in obtaining
Defendants Livingston and Torrez' addresses. See Bias
v. Moynihan, 508 F.3d 1212, 1219 (9th Cir. 2007)
(“A district court lacks the power to act as a
party's lawyer, even for pro se
litigants.”); Pliler v. Ford, 542 U.S. 225,
231 (2004) (federal “judges have no obligation to act
as counsel or paralegal to pro se litigants”)
(italics in original); Barnes v. United States, 241
F.2d 252 (9th Cir. 1956) (noting pro se litigant does not
have rights that a represented litigant does not have).
Plaintiff's request that the Court order Corizon Health
Services Inc. or USMS to provide information to the Court to
effectuate service of process is denied.
the Court will grant Plaintiff an extension of time to
complete service and will permit Plaintiff to conduct
reasonable discovery limited to ascertaining the requisite
service information for Defendants Livingston and Torrez,
specifically the Defendants' current addresses or last
addresses of record while working for Corizon Health Services
Inc.. The USMS's inability to effect service on
Plaintiff's behalf is good cause for an extension of time
to complete service of process. Pruett v. Blanford,
912 F.2d 270, 276 (9th Cir. 1990). Plaintiff may obtain each
Defendant's address through a subpoena duces tecum. The
Court will provide Plaintiff with two blank subpoenas duces
tecum which he may use to obtain the address information for
each Defendant from Corizon Health Services Inc.. The Clerk
of Court will file any information disclosed by Corizon
Health Services Inc. under seal and provide same to USMS for
service of process.
good cause shown, IT IS ORDERED extending
the time for service of process on Defendants Livingston and
Torrez to December 15, 2019.
IS FURTHER ORDERED:
1. The Clerk of Court is directed to issue and send to
Plaintiff two subpoenas duces tecum in blank.
2. Plaintiff shall complete the subpoenas duces tecum
requesting documents that would contain a current or last
address of record for Defendants Livingston and Torrez and
return the subpoenas duces tecum to the Clerk of Court on or
before October 15, 2019.
3. Upon receipt of the completed subpoenas, the Clerk of
Court is directed to forward them to the USMS for service.
IS FUTHER ORDERED:
1. Plaintiff must complete the subpoenas such that the
documents requested are returned to the Court, ...