Opinion
21-cv-0162-MMA (RBM)
10-26-2021
HENRY A. JONES, JR., Plaintiff, v. MARCUS POLLARD, et al., Defendants.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR WAIVER OF SERVICE AND EXTENDING TIME TO EFFECT SERVICE OF THE SUMMONS AND COMPLAINT
[Doc. No. 27]
HON. MICHAEL M. ANELLO United States District Judge
On January 27, 2021, Plaintiff Henry A. Jones, Jr., a state prisoner proceeding pro se, filed a civil rights complaint pursuant 42 U.S.C. § 1983, along with a motion to proceed in forma pauperis. See Doc. No. 1. The Court denied the motion to proceed in forma pauperis on the basis Plaintiff has had at least three prior prisoner civil actions dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted, see Doc. No. 5, and Plaintiff subsequently paid the filing fee, see Doc. No. 9.
On June 16, 2021, the Court screened the Complaint pursuant to the provisions of 28 U.S.C. § 1915A, and found it contains a plausible claim sufficient to survive the “low threshold” set for sua sponte screening under 28 U.S.C. § 1915A as to Defendants Warden Pollard and Secretary Allison. See Doc. No. 10 at 3. The Court directed the Clerk of Court to issue the Summons and informed Plaintiff of the requirements for service of the Summons and Complaint. See id. at 4-5. Plaintiff was notified that the 90-day period in which to timely serve the Summons and Complaint had been tolled while his Complaint was in screening and that it began to run on the date the screening Order issued, June 16, 2021, which was also the date the Summons issued. See id. at 5 n.1. Accordingly, the 90-day service period was set to expire on September 14, 2021. See Fed. R. Civ. P. 4(m).
On July 22, 2021, Plaintiff filed a motion to proceed in forma pauperis and a motion requesting an extension of time to serve Defendants. See Doc. Nos. 16, 18. The Court denied Plaintiff's motion to proceed in forma pauperis for the reasons set forth in the Court's February 4, 2021 Order denying the original in forma pauperis application, which reasoned that under 28 U.S.C. § 1915(g) Plaintiff is ineligible to proceed in forma pauperis because he has had at least three prior prisoner civil actions dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted. See Doc. No. 19. The Court granted Plaintiff's motion for an extension of time to serve the Summons and Complaint and extended that deadline to October 29, 2021. See id.
On August 20, 2021, Plaintiff filed a motion to direct the U.S. Marshal Service to effect service of the Summons and Complaint on the Defendants. See Doc. No. 21. The Court denied that motion on August 24, 2021, on the basis that Plaintiff is not entitled to service of process by the U.S. Marshal because Plaintiff is not authorized to proceed in forma pauperis in this action. See Doc. No. 22. On October 1, 2021, Plaintiff filed a motion for appointment of counsel to assist him in service of the Summons and Complaint. See Doc. No. 24. The Court denied that motion on October 8, 2021. See Doc. No. 25.
On October 21, 2021, Plaintiff filed the instant motion for waiver of Summons. See Doc. No. 26. He indicates that the service deadline of October 29, 2021, is rapidly approaching and that, in order to effect service of the Summons and Complaint, he requires two copies of his Complaint to attach to service waiver forms to send to the two Defendants. See id. at 1-2. He requests the Court send the two copies of the Complaint he attached to one of his earlier motions along with a waiver of service form to the Defendants. See id. at 1-2.
To the extent Plaintiff asks the Court to serve the Summons and Complaint upon the Defendants for him, the Court DENIES his request. However, to the extent Plaintiff is seeking copies of his Complaint and two blank copies of this Court's Waiver of Service of Summons form in order to serve the Defendants himself, the Court GRANTS his motion. Moreover, upon good cause shown, the Court EXTENDS the service deadline one month, until November 29, 2021 . See Fed. R. Civ. P. 6(b)(1)(A) (providing that the Court has discretion to extend the time for service of the Summons and Complaint for “good cause” where the moving party requests an extension before the applicable deadline expires); see also Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1255 (9th Cir. 2010) (providing that Rule 6(b)(1)(A) must be “liberally construed to effectuate the general purpose of seeing that cases are tried on the merits.”) Plaintiff is cautioned that the Court will not grant any further extensions to file proof of service pursuant to Fed.R.Civ.P. 4(1) or file a waiver pursuant to Fed.R.Civ.P. 4(d).
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Conclusion
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART
Plaintiffs motion as set forth above. The Court DIRECTS the Clerk of Court to send Plaintiff two (2) copies of his Complaint (Doc. No. 1) along with this Order and two (2) copies of this Court's Waiver of Service of Summons form for Defendants to execute upon receipt. Moreover, the Court EXTENDS the time for service of the Summons and Complaint upon Defendants Warden Pollard and Secretary Allison to November 29, 2021 . Plaintiff must file proof of service pursuant to Fed.R.Civ.P. 4(1), or waivers executed by Defendants pursuant to Fed.R.Civ.P. 4(d), within that time or face dismissal for failure to prosecute pursuant to Fed.R.Civ.P. 4(m).
IT IS SO ORDERED.