Jones v. Pollard

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 HENRY A. JONES, JR., Case No.: 21-cv-0162-MMA (RBM)

12 ORDER GRANTING IN PART AND Plaintiff, 13 DENYING IN PART PLAINTIFF’S v. MOTION FOR WAIVER OF 14 SERVICE AND EXTENDING TIME MARCUS POLLARD, et al., 15 TO EFFECT SERVICE OF THE Defendants. SUMMONS AND COMPLAINT 16 17 [Doc. No. 27] 18 19 On January 27, 2021, Plaintiff Henry A. Jones, Jr., a state prisoner proceeding pro 20 se, filed a civil rights complaint pursuant 42 U.S.C. § 1983, along with a motion to proceed 21 in forma pauperis. See Doc. No. 1. The Court denied the motion to proceed in forma 22 pauperis on the basis Plaintiff has had at least three prior prisoner civil actions dismissed 23 on the grounds that they were frivolous, malicious, or failed to state a claim upon which 24 relief may be granted, see Doc. No. 5, and Plaintiff subsequently paid the filing fee, see 25 Doc. No. 9. 26 On June 16, 2021, the Court screened the Complaint pursuant to the provisions of 27 28 U.S.C. § 1915A, and found it contains a plausible claim sufficient to survive the “low 28 threshold” set for sua sponte screening under 28 U.S.C. § 1915A as to Defendants Warden 1 Pollard and Secretary Allison. See Doc. No. 10 at 3. The Court directed the Clerk of Court 2 to issue the Summons and informed Plaintiff of the requirements for service of the 3 Summons and Complaint. See id. at 4–5. Plaintiff was notified that the 90-day period in 4 which to timely serve the Summons and Complaint had been tolled while his Complaint 5 was in screening and that it began to run on the date the screening Order issued, June 16, 6 2021, which was also the date the Summons issued. See id. at 5 n.1. Accordingly, the 90- 7 day service period was set to expire on September 14, 2021. See Fed. R. Civ. P. 4(m). 8 On July 22, 2021, Plaintiff filed a motion to proceed in forma pauperis and a motion 9 requesting an extension of time to serve Defendants. See Doc. Nos. 16, 18. The Court 10 denied Plaintiff’s motion to proceed in forma pauperis for the reasons set forth in the 11 Court’s February 4, 2021 Order denying the original in forma pauperis application, which 12 reasoned that under 28 U.S.C. § 1915(g) Plaintiff is ineligible to proceed in forma pauperis 13 because he has had at least three prior prisoner civil actions dismissed on the grounds that 14 they were frivolous, malicious, or failed to state a claim upon which relief may be granted. 15 See Doc. No. 19. The Court granted Plaintiff’s motion for an extension of time to serve 16 the Summons and Complaint and extended that deadline to October 29, 2021. See id. 17 On August 20, 2021, Plaintiff filed a motion to direct the U.S. Marshal Service to 18 effect service of the Summons and Complaint on the Defendants. See Doc. No. 21. The 19 Court denied that motion on August 24, 2021, on the basis that Plaintiff is not entitled to 20 service of process by the U.S. Marshal because Plaintiff is not authorized to proceed in 21 forma pauperis in this action. See Doc. No. 22. On October 1, 2021, Plaintiff filed a motion 22 for appointment of counsel to assist him in service of the Summons and Complaint. See 23 Doc. No. 24. The Court denied that motion on October 8, 2021. See Doc. No. 25. 24 On October 21, 2021, Plaintiff filed the instant motion for waiver of Summons. See 25 Doc. No. 26. He indicates that the service deadline of October 29, 2021, is rapidly 26 approaching and that, in order to effect service of the Summons and Complaint, he requires 27 two copies of his Complaint to attach to service waiver forms to send to the two 28 Defendants. See id. at 1–2. He requests the Court send the two copies of the Complaint 1 he attached to one of his earlier motions along with a waiver of service form to the 2 Defendants. See id. at 1–2. 3 To the extent Plaintiff asks the Court to serve the Summons and Complaint upon the 4 Defendants for him, the Court DENIES his request. However, to the extent Plaintiff is 5 seeking copies of his Complaint and two blank copies of this Court’s Waiver of Service of 6 Summons form in order to serve the Defendants himself, the Court GRANTS his motion. 7 Moreover, upon good cause shown, the Court EXTENDS the service deadline one month, 8 until November 29, 2021. See Fed. R. Civ. P. 6(b)(1)(A) (providing that the Court has 9 discretion to extend the time for service of the Summons and Complaint for “good cause” 10 where the moving party requests an extension before the applicable deadline expires); see 11 also Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1255 (9th Cir. 2010) (providing 12 that Rule 6(b)(1)(A) must be “liberally construed to effectuate the general purpose of 13 seeing that cases are tried on the merits.”) Plaintiff is cautioned that the Court will not 14 grant any further extensions to file proof of service pursuant to Fed. R. Civ. P. 4(l) or file 15 a waiver pursuant to Fed. R. Civ. P. 4(d). 16 17 18 19 20 *** 21 22 23 24 25 26 27 28 CONCLUSION 2 For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART 3 || Plaintiff's motion as set forth above. The Court DIRECTS the Clerk of Court to send 4 || Plaintiff two (2) copies of his Complaint (Doc. No. 1) along with this Order and two (2) 5 || copies of this Court’s Waiver of Service of Summons form for Defendants to execute upon 6 ||receipt. Moreover, the Court EXTENDS the time for service of the Summons and 7 ||Complaint upon Defendants Warden Pollard and Secretary Allison to November 29, 2021. 8 || Plaintiff must file proof of service pursuant to Fed. R. Civ. P. 4(1), or waivers executed by 9 || Defendants pursuant to Fed. R. Civ. P. 4(d), within that time or face dismissal for failure 10 || to prosecute pursuant to Fed. R. Civ. P. 4(m). 11 IT IS SO ORDERED. 12 Dated: October 26, 2021 13 Mbihul WU lolbe □□ 5 14 HON. MICHAEL M. ANELLO 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28