Hamilton v. Moseley
- Proceeding
- district
- Area
- civil
- Panel
- Cathy Ann Bencivengo (author)
Analysis
The court considered a pro se plaintiff's motion to order the U.S. Marshals to locate and serve defendants, along with motions for extensions of time to respond to a motion to dismiss and to serve remaining defendants. The court denied the motion for addresses, granted the motion to respond with a modification, denied the motion for extension of service time as moot, and granted the motion for extension of service time with a modification.
| What the court decided | The model |
|---|---|
Motion for Addresses (Doc. No. 42) is DENIED.“Therefore, the Motion for Addresses [Doc. No. 42] is DENIED.” | agree with court The court correctly applied Federal Rule of Civil Procedure 4(c)(3), which allows the court to order service by a U.S. Marshal only upon the plaintiff's request and typically requires a showing that other means of service are ineffective. The court noted that the plaintiff is not proceeding in forma pauperis, meaning the mandatory service by the Marshals under 28 U.S.C. § 1915(d) does not apply. Furthermore, the plaintiff requested investigative assistance to locate defendants, which is beyond the scope of the court's authority to order service, especially without a showing of futility of alternative methods. The denial is consistent with the cited authorities and the procedural posture. |
Motion for Extension to Respond to Motion to Dismiss (Doc. No. 44, Motion A) is GRANTED WITH MODIFICATION.“Plaintiff's motion [Doc. No. 44, Motion A] is GRANTED WITH MODIFICATION. The Court will provide Plaintiff with an additional thirty days to respond to the motion to dismiss.” | agree with court The court exercised its discretion to manage the docket by granting a reasonable extension of time for a pro se prisoner to respond to a motion to dismiss. The modification from a requested nine-month extension to thirty days is a standard judicial adjustment to ensure case progression while accommodating the plaintiff's status. This is a routine procedural ruling. |
Motion for Extension of Service Time to Receive Court’s Response (Doc. No. 44, Motion B) is DENIED AS MOOT.“The Court has now ruled on the Motion for Addresses and, therefore, the Motion for Extension of Service Time to Receive Court’s Response [Doc. No. 44, Motion B] is DENIED AS MOOT.” | agree with court The motion sought an extension to wait for a ruling on the Motion for Addresses. Since the court ruled on the Motion for Addresses in the same order, the purpose of the extension request was fulfilled or rendered irrelevant. Denying it as moot is procedurally correct. |
Motion for Extension of Time to Locate and Serve Not Served Defendants (Doc. No. 44, Motion C) is GRANTED WITH MODIFICATION.“That motion is GRANTED WITH MODIFICATION. Plaintiff shall have until November 14, 2022, to locate and serve the not served defendants.” | agree with court The court granted a modified extension of time for the plaintiff to serve the remaining defendants. This is within the court's inherent authority to set deadlines for service under Rule 4(m) and to manage the case schedule. The specific date provided is a reasonable administrative determination. |
The order itself: sound — The order is procedurally sound. It correctly distinguishes between the mandatory service by the Marshals for IFP plaintiffs and the discretionary service for non-IFP plaintiffs. It properly applies Rule 4(c)(3) and cites relevant district court authority to support the requirement that a plaintiff show futility of alternative service methods before the court will order Marshals service. The handling of the extension motions is standard case management. There are no significant gaps in reasoning for these routine procedural matters.
Opinion
1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 DANNY HAMILTON, Case No.: 21cv2032-CAB-AHB CC22MX910/CDCR #T61263, 10 ORDER REGARDING DOCKET Plaintiff, 11 NOS. 42 AND 44 vs. 12 13 KATHLEEN ALLISON, Secretary of the 14 California Department of Corrections and 15 Rehabilitation, et al., 16 Defendants. 17 18 Danny Hamilton (Plaintiff) is a state inmate currently incarcerated at the Contra 19 Costa County West County Detention Facility. He is proceeding pro se, but not in forma 20 pauperis, and has filed a civil rights Complaint (and First Amended Complaint) pursuant 21 to 42 U.S.C. § 1983 (ECF Nos. 1 and 8). 22 On July 29, 2022, Plaintiff filed a Motion to Order Attorney General and Court’s 23 Pro Se Prisoner Litigation Office to Provide Addresses for Service on the Not Served 24 Defendants (“Motion for Addresses”). [Doc. No. 42.] On August 29, 2022, Plaintiff filed 25 a motion for: A) extension of time to respond to Defendant Mohamed’s motion to 26 dismiss; B) extension of service time to receive Court’s response to Plaintiff’s motion for 27 addresses; and C) extension of time to locate and serve the not served defendants. [Doc. 28 No. 44.] 1 A. Motion For Addresses. 2 In the Motion for Addresses [Doc. No. 42], Plaintiff asks the Court to order the Pro Se 3 Litigation Office or the U.S. Marshals to locate and serve the unserved defendants. [Doc. 4 No. 42.] As stated in this Court’s order of July 13, 2022 regarding a similar request made 5 by Plaintiff, the Court has limited authority to order service by the U.S. Marshal, 6 especially when Plaintiff is not proceeding in forma pauperis and when Plaintiff does not 7 know the whereabout of the defendants. [See Doc. No. 40 at 3.] 8 Generally, a plaintiff “is responsible for having the summons and complaint served 9 within the time allowed by Rule 4(m) and must furnish the necessary copies to the person 10 who makes service.” Fed. R. Civ. P. 4(c)(1). When a plaintiff proceeds both pro se and in 11 forma pauperis, however, the Clerk of Court issues the summonses and causes service of 12 process to be effectuated by the United States Marshals Service on the defendants, 13 pursuant to 28 U.S.C. § 1915(d) and Federal Rule of Civil Procedure 4(c)(3). Here, 14 Plaintiff is pro se but has paid the court's filing fee; he has not been given permission to 15 proceed in forma pauperis. 16 However, “[a]t the plaintiff's request, the court may order that service be made by a 17 United States marshal or deputy marshal or by a person specially appointed by the court.” 18 Fed.R.Civ.P. 4(c)(3). Assuming Plaintiff is making such a request, he does not explain 19 why an alternative means, such as hiring a process server or investigator, would not be 20 effective. See Bozgoz v. Blackwell, No. 19-2790, 2021 WL 1518337, at *4 (D.D.C. Apr. 21 16, 2021) (requiring plaintiffs to explain why alternate methods of service “would prove 22 unsuccessful or futile ... such that the assistance of the USMS would be required”). See 23 also Judd v. Fed. Comm'cns Comm'n, 276 F.R.D. 1, 6 (D.D.C. 2011) (precluding pro se 24 prisoner not proceeding in forma pauperis from relying on United States Marshals 25 Service to effect service). Moreover, Plaintiff is going beyond asking for the U.S. 26 Marshal to serve defendants, because Plaintiff acknowledges that he does not know 27 where the defendants are located and therefore is requesting some sort of investigative 28 assistance. Again, Plaintiff provides no authority that would allow the Court to provide 1 || such investigative assistance, especially when Plaintiff is not proceeding in forma 2 || pauperis. Therefore, the Motion for Addresses [Doc. No. 42] is DENIED. 3 B. Motion for Extension to Respond to Motion to Dismiss. 4 Defendant requests a nine-month extension of time to respond to Defendant 5 ||Mohammed’s motion to dismiss. Plaintiff's motion [Doc. No. 44, Motion A] is 6 || GRANTED WITH MODIFICATION. The Court will provide Plaintiff with an 7 || additional thirty days to respond to the motion to dismiss. Plaintiff shall have until 8 || October 3, 2022, to file a response to the motion to dismiss and shall use his best efforts 9 ||to provide as comprehensive a response as possible given the confines of his access to 10 resources while incarcerated. 11 C. Motion for Extension of Service Time to Receive Court’s Response to Motion for 12 Addresses. 13 The Court has now ruled on the Motion for Addresses and, therefore, the Motion for 14 || Extension of Service Time to Receive Court’s Response [Doc. No. 44, Motion B] is 15 || DENIED AS MOOT. 16 D. Motion for Extension of Time to Locate and Serve Not Served Defendants. 17 Defendant requests an additional 90 days to locate and serve the not served 18 defendants. [Doc. No. 44, Motion C.] That motion is GRANTED WITH 19 || MODIFICATION. Plaintiff shall have until November 14, 2022, to locate and serve 20 || the not served defendants. 21 IT IS SO ORDERED. 22 ||Dated: September 2, 2022 € 23 Hon. Cathy Ann Bencivengo 24 United States District Judge 25 26 27 28 3