McFalls v. Alonzo

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROBERT NELSON MCFALLS, Case No. 21-cv-849-MMA (RBB)

12 Plaintiff, ORDER SUA SPONTE EXTENDING 13 v. TIME TO SERVE FIRST AMENDED COMPLAINT AND DIRECTING U.S. 14 MARIO ALONZO, MARSHAL TO AFFECT SERVICE 15 Defendant. 16 17 18 On September 24, 2021, Plaintiff Robert Nelson McFalls, a California state inmate 19 proceeding pro se, filed a first amended civil rights complaint pursuant to 42 U.S.C. 20 § 1983 against Mario Alonzo, a Lieutenant at Centinela State Prison. See Doc. No. 8 21 (“FAC”). On November 3, 2021, Plaintiff’s First Amendment retaliation claim survived 22 screening, see Doc. No. 9, and a summons was issued, see Doc. No. 10. The Court 23 directed the U.S. Marshal to serve Defendant as directed by Plaintiff on U.S. Marshal 24 Form 285. Doc. No. 9 at 7. 25 On December 28, 2021, Plaintiff’s Form 285 was entered onto the Docket. See 26 Doc. No. 11. According to the Form, the U.S. Marshal mailed the summons and First 27 Amended Complaint to Centinela State Prison. See id. However, the Form is 28 incomplete—it does not reflect whether Defendant has waived service or if service 1 remains unexecuted. See id. Thus, this filing was improperly docketed as “SUMMONS 2 Returned Executed.” See id. 3 On July 7, 2022, the U.S. Marshal filed a second Form 285 reflecting that 4 Defendant has not been served. See Doc. No. 12. Accordingly, the Court DIRECTS the 5 Clerk of Court to update the docket text of ECF No. 11 to reflect that the summons was 6 returned unexecuted. The Court further sua sponte EXTENDS Plaintiff’s time to serve 7 under Federal Rule of Civil Procedure 4(m). See Walker v. Sumner, 14 F.3d 1415, 1422 8 (9th Cir. 1994) (“[A]n incarcerated pro se plaintiff proceeding in forma pauperis is 9 entitled to rely on the U.S. Marshal for service of the summons and complaint and . . . 10 should not be penalized by having his action dismissed for failure to effect service where 11 the U.S. Marshal or the court clerk has failed to perform his duties.”) (quoting Puett v. 12 Blandford, 912 F.2d 270, 275 (9th Cir. 1990), abrogated on other grounds by Sandin v. 13 Conner, 515 U.S. 472 (1995)); see also id. (“So long as the prisoner has furnished the 14 information necessary to identify the defendant, the marshal’s failure to effect service is 15 ‘automatically good cause” to extend time to serve under Rule 4(m)) (quoting Sellers v. 16 United States, 902 F.2d 598, 603 (7th Cir. 1990)). 17 The Court DIRECTS the Clerk of Court to re-issue the summons as to the FAC, 18 see Doc. No. 8, upon Defendant and send it to Plaintiff along with a new, blank U.S. 19 Marshal Form 285. In addition, the Court DIRECTS the Clerk of Court to provide 20 Plaintiff with a certified copy of this Order, a certified copy of his FAC, and the new 21 summons so that he may serve Defendant. 22 Upon receipt of these documents, the Court DIRECTS Plaintiff to complete the 23 U.S. Marshal Form 285 as completely and accurately as possible, include an address 24 where Defendant may be found and/or subject to service pursuant to CivLR 4.1c., and 25 return the form to the U.S. Marshal according to the instructions the Clerk of Court 26 provides. 27 The Court further ORDERS the U.S. Marshal to serve a copy of the FAC and 28 summons upon Defendant Alonzo, as directed by Plaintiff on the new USM Form 285 1 provided to him, on or before August 1, 2022, and to promptly file proof of service, or 2 proof of any attempt at service unable to be executed, with the Clerk of Court thereafter. 3 See CivLR 5.2. Should Defendant Alonzo fail to return the U.S. Marshal’s request for 4 waiver of personal service within ninety (90) days, the U.S. Marshal shall instead file a 5 new completed Form 285 with the Clerk of Court, include the date the summons, FAC, 6 and request for waiver was mailed to Defendant Alonzo, and note that service upon him 7 remains unexecuted. All costs of U.S. Marshal service will be advanced by the United 8 States; however, if a Defendant located within the United States fails, without good 9 cause, to sign and return the waiver requested by the U.S. Marshal on behalf of Plaintiff, 10 the Court will impose upon the Defendant any expenses later incurred in making service. 11 See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3), (d)(2). 12 The Court additionally ORDERS Defendant to respond to Plaintiff’s First 13 Amended Complaint within the time prescribed by Rule 4, but in no event later than 14 October 1, 2022. See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be 15 permitted to “waive the right to reply to any action brought by a prisoner confined in any 16 jail, prison, or other correctional facility under section 1983,” once the Court has 17 conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), 18 and thus, has made a preliminary determination based on the face on the pleading alone 19 that Plaintiff has a “reasonable opportunity to prevail on the merits,” defendant is 20 required to respond). 21 The Court reminds Plaintiff that, after service has been affected by the U.S. 22 Marshal, he remains obligated to serve upon Defendant, or if appearance has been 23 entered by counsel, upon Defendant’s counsel, a copy of every further pleading, motion, 24 or other document submitted for the Court’s consideration pursuant to Fed. R. Civ. P. 25 5(b). Plaintiff must include with every original document he seeks to file with the Clerk 26 of the Court, a certificate stating the manner in which a true and correct copy of that 27 document was served on Defendant or his counsel, and the date of that service. See 28 CivLR 5.2. Any document received by the Court that has not been properly filed with the 1 || Clerk or fails to include a Certificate of service upon Defendant or his counsel, may be 2 || disregarded. 3 IT IS SO ORDERED. 4 ||Dated: July 8, 2022 5 pWMihuk TM =/ hipllr 6 HON. MICHAEL M. ANELLO 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28