Opinion
CV-21-01376-PHX-DWL (ESW)
05-06-2022
Donte Clarke, Plaintiff, v. Unknown Chuevas, et al., Defendants.
ORDER
HONORABLE EILEEN S. WILLETT, UNITED STATES MAGISTRATE JUDGE
The Court has considered Plaintiff's “Motion Requesting Extension of Time to File Complaint on Unserved Defendant and Request for Summons Service Packet” (Doc. 49). The Motion will be granted in part.
On August 9, 2021, Plaintiff Donte Clarke, who is currently confined in ASPC Eyman-Cook Unit in Florence, Arizona, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1). The Court screened Plaintiff's Complaint pursuant to 28 U.S.C. § 1915A(a), ordered Defendants Chuevas and Villalonzo to answer Count Two, and ordered Plaintiff to file a Notice of Substitution within 120 days, substituting Defendant Doe's actual name (Doc. 10 at 8).
On November 8, 2021, service of process was returned unexecuted as to Defendant Chuevas (Doc. 11). The United States Deputy Marshal stated on the return: “I hereby certify that I am unable to locate the individual.. .named above.” (Id.). On March 18, 2022, the Court extended the deadline for service of process to April 29, 2022 and ordered the Arizona Department of Corrections to file under seal the last known address for Defendant Chuevas to enable the Clerk of Court to prepare a second service packet for the U.S. Marshal Service (“USMS”) to effectuate service of process on Defendant Chuevas (Doc. 41 at 3). Thereafter, the Attorney General timely filed a Notice with the Court advising that there is no COII Chuevas at the Arizona Department of Corrections (Doc. 44). However, there is a COII Juan Cuevas currently working at the ASPC Eyman-Meadows Unit who was working at the ASPC Eyman-Browning Unit on July 31, 2020, the date and location of the incident set forth in Plaintiff's Complaint (Id.). Plaintiff has correctly concluded in his Motion that he incorrectly spelled Defendant Chuevas' name.
Plaintiff requests that the Court (i) extend the time for service of process on Defendant Chuevas and (ii) provide an addition service packet. However, Plaintiff cannot serve Juan Cuevas until Juan Cuevas is named as a Defendant in the Complaint. Plaintiff must move to amend his Complaint in accordance with Fed.R.Civ.P. 15 and LRCiv 15.1 (a). Local Rule 15.1(a) provides that:
A party who moves for leave to amend a pleading must attach a copy of the proposed amended pleading as an exhibit to the motion, which must indicate in what respect it differs from the pleading which it amends, by bracketing or striking through the text to be deleted and underlining the text to be added. The proposed amended pleading must not incorporate by reference any part of the preceding pleading, including exhibits.
LRCiv 15.1(a) (emphasis added).
The Court will provide to the Plaintiff a prisoner civil rights complaint form for Plaintiff to fill out in accordance with the rules of procedure set forth above. Plaintiff may correct the spelling of Defendant Chuevas' name and attach the proposed amended complaint to his Motion to Amend Complaint. The Plaintiff shall title the attached proposed document “Amended Complaint.”
The Court will extend the time for service of process. Should the Motion to Amend be granted, then the Court will send the Plaintiff an additional service packet as requested.
For the reasons set forth herein, IT IS ORDERED granting in part Plaintiff's “Motion Requesting Extension of Time to File Complaint on Unserved Defendant and Request for Summons Service Packet” (Doc. 49).
IT IS FURTHER ORDERED extending the time for service of process to July 5, 2022.
IT IS FURTHER ORDERED that the Clerk of Court forward to the Plaintiff a blank Prisoner Civil Rights Complaint form. Plaintiff shall file his Motion to Amend Complaint with attached proposed Amended Complaint no later than June 6, 2022.