Opinion
CV 20-02288 PHX DJH (CDB)
02-07-2022
Norris Dajon Miller, Plaintiff, v. Katrina Valentino, et al., Defendants.
HONORABLE DIANE J. HUMETEWA:
REPORT AND RECOMMENDATION
Camille D. Bibles United Slates Magistrate Judge
Plaintiff proceeds pro se in this prisoner civil rights matter. In an order (ECF No. 24) entered October 20, 2021, the Court ordered Defendants Alvarez, Andrade, and McKamey to answer the Third Amended Complaint. The Third Amended Complaint asserts claims arising from Plaintiff's medical care in late 2018 and early 2019 while detained at the La Palma Correctional Center (“LPCC”) in Eloy, Arizona, a private facility operated by Corizon which houses those immigration detainees. Service on Defendants Alvarez and Andrade was executed on December 22, 2021 (ECF Nos. 25 & 26), and service on Defendant McKamey was returned unexecuted on December 22, 2021, with the notation: “Arlene McKamey is retired and no longer works @ the address listed,” i.e., at LPCC. (ECF No. 27).
In the service order the Court stated:
If Plaintiff does not either obtain a waiver of service of the summons or complete service of the Summons and Third Amended Complaint on a Defendant within 90 days of the filing of the Complaint 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)(ii).(ECF No. 24 at 9).
Accordingly, service in this matter was required by December 20, 2021.The CM/ECF docket in this matter indicates Plaintiff has failed to effective service of process on Defendant McKamey within the time required by the Court's order at ECF No. 24. Therefore, on January 6, 2022, the Court allowed Plaintiff until February 4, 2022, to show cause why Defendant McKamey and all of Plaintiff's claims against Defendant McKamey should not be dismissed for Plaintiff's failure to comply with the Court's order of October 20, 2021, and Rule 4 of the Federal Rules of Civil Procedure.
In response to the Order to Show Cause Plaintiff asks the Court to order the default of Defendant McKamey and to award him “$1,000,000,000 because McKamey did not file and serve and answer to the summons and Third Amended Complaint . . .” (ECF No. 31). Plaintiff contends “McKamey still work[s] at LPCC and she sent the U.S. Marshals service mail back return to sender.” (Id.). Plaintiff notes that although Defendants Alvarez and Andrade maintain McKamey has not been served, “[t]he Defendants never said that McKamey does not work [at LPCC] anymore, so that mean[s] that McKamey is still employeed [sic] at LPCC and refused to reply to the summons and Third Amended Complaint.” (Id.). Plaintiff also asserts “I know when Alvarez read the Third Amended Complaint she notified McKamey and her entity that McKamey was also being sued.” (Id.). Plaintiff also asks the Court to “send [him] a motion for custodian of records for McKamey['s] Home or new work address if she is still hiding out at LPCC.” (Id.).
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 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 accurate and 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). And 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 District Court judges of the United States District Court for the District of Arizona 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) (holding that the Court should not assume the role of advocate for a pro se litigant). See also Pember v. Ryan, 2014 W L 3397735, at *2-3 (D. Ariz. July 11, 2014); Allen v. Unknown Party, 2014 WL 4980857, at *4 (D. Ariz. Oct. 3, 2014); Johnson v. Clark, 2013 WL 646022, at *5 (D. Ariz. Feb. 21, 2013); Ramirez v. Denver Health Med. Ctr., 2006 WL 2527965, at *3 (D. Colo. Aug. 30, 2006). 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). As an impartial decision maker, 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 under Rule 4(m). 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 McKamey and Plaintiff's claims against McKamey be dismissed without prejudice for Plaintiff's failure to timely effect service of process on this Defendant.
In Griggs v. Ryan, 2:19 cv 00292, Corizon was ordered to disclose the last known address of McKamey, and service on McKamey at that address was returned as unexecuted with the notation that McKamey had moved. Accordingly, ordering Corizon to disclose McKamey's last known address would likely be futile.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length. Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).