Opinion
CV 21-01792 PHX DWL (CDB)
03-22-2022
Angel Soto, Plaintiff, v. Nathaniel Harris, et al., Defendants.
REPORT AND RECOMMENDATION
Camille D. Bibles United States Magistrate Judge
TO THE HONORABLE DOMINIC W. LANZA:
Plaintiff, who is in custody, proceeds pro se in this civil rights matter, which was filed October 22, 2021. In an Order issued November 4, 2021, the Court ordered Defendants Harris, Jordan, and Merriman to answer the Complaint. (ECF No. 4). Defendants Harris and Merriman waived service; these Defendants answered the Complaint and a scheduling order issued January 25, 2022. The CM/ECF docket in this matter indicates service on Defendant Jordan was returned unexecuted on December 7, 2021, with the notation that Jordan no longer worked for the Arizona Department of Corrections, Rehabilitation, and Reentry (“ADCRR”). (ECF No. 8). Accordingly, on February 2, 2022, Plaintiff was ordered to show cause why Defendant Jordan and of Plaintiff's claim against Defendant Jordan should not be dismissed for Plaintiff's failure to effect service of process on Defendant Jordan. (ECF No. 19). In response to the Order to Show Cause Plaintiff asked the Court to order the Arizona Department of Corrections, Rehabilitation, and Reentry (“ADCRR”) to disclose the last known address of Defendant 1 Jordan, and order the United States Marshal to serve Defendant Jordan at that address. (ECF No. 21). The Court granted the requested relief, and the last known address of Defendant Jordan was disclosed on February 25, 2022. (ECF No. 32). Service on Defendant Jordan at the address disclosed by the ADCRR was returned as unexecuted on March 18, 2022. (ECF No. 41). The Marshal noted the address provided by the ADCRR was unoccupied and the residence is for sale. (Id.).
In the Court's service order issued November 4, 2021, the Court stated:
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, 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. 4 at 1). Accordingly, service in this matter was required by January 20, 2022.
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). In response 2 to the Order to Show Cause at ECF No. 19 Plaintiff asserted that, other than asking the ADCRR to disclose Jordan's last known address, he has no means of obtaining Jordan's whereabouts for service. (ECF No. 21). That avenue of inquiry has now been exhausted without effective service on Jordan.
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. 2014); Allen v. Unknown Party, 2014 WL 4980857, at *4 (D. Ariz. 2014); Johnson v. Clark, 2013 WL 646022, at *5 (D. Ariz. 2013); Ramirez v. Denver Health Med. Ctr., 2006 WL 2527965, at *3 (D. Colo. 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, 3
IT IS RECOMMENDED that Defendant Jordan and Plaintiff's claims against Jordan be dismissed without prejudice for Plaintiff's failure to timely effect service of process on this Defendant.
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)(2), 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), 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). Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will constitute a waiver of a party's right to appellate review of the findings of fact and conclusions of law in an order or judgment entered pursuant to the recommendation of the Magistrate Judge. 4