United States District Court, D. Nevada
GEORGE A. TOLIVER, Plaintiff,
LAS VEGAS METROPOLITAN POLICE DEPARTMENT, et al., Defendants.
ORDER (MOT. FOR SERVICE- ECF NO. 32; MOT. FOR SUMMONS
ECF NO. 40)
A. LEEN UNITED STATES MAGISTRATE JUDGE
matter is before the court on Plaintiff George A.
Toliver's Motion for Service by Marshals (ECF No. 32) and
Motion for Issuance of Summons (ECF No. 40). These Motions
are referred to the undersigned pursuant to 28 U.S.C. §
636(b)(1)(A) and LR IB 1-3 of the Local Rules of Practice.
Toliver is a prisoner in the custody of the Nevada Department
of Corrections and he is proceeding in this case pro
se and in forma pauperis. See
Screening Order (ECF No. 9). Upon screening the complaint,
the court determined that it stated a viable claim for a
Fourteenth Amendment procedural due process violation against
Defendant Officer Doss (P# 971) only. Id. Toliver
was given leave to amend his Complaint (ECF No. 10) within 30
days, but he chose not to do so. See Order (ECF No.
13). The court therefore directed the Clerk of the Court to
issue summons to Doss and instructed Mr. Toliver to provide
the U.S. Marshals Service (“USM”) with the
information for service. Id. He properly submitted a
USM-285 form; however, the USM was unable to complete service
at the address he provided because the name and P# were
incorrect. See Unexecuted Summons (ECF No. 15).
January 21, 2016, Mr. Toliver filed a Motion for Order of
Subpoena (ECF No. 16) asking the court to issue a subpoena to
the Las Vegas Metropolitan Police Department
(“LVMPD”), Doss' employer, to provide her
correct full name, number, and new work address if any. He
attached as Exhibit B to his motion a copy of a notice he
received describing the incident with Doss, which is the
subject of this litigation. The court granted his motion and
directed the USM to serve the custodian of records for LVMPD
with a subpoena deuces tecum to require LVMPD to
disclose within 14 days of service Officer Doss' full
name, address, and phone number directly to the USM so it may
again attempt service. See Aug. 23, 2016 Order (ECF
No. 24). The USM served LVMPD with the Subpoena (ECF No. 26)
on September 13, 2016, and filed proof of service with the
court. See Subpoena Returned Executed (ECF No. 30).
October 26, 2016, Plaintiff filed the current Motion for
Service by Marshals (ECF No. 32) indicating that he had not
received the requested information and requesting another
order directing the USM to serve another subpoena to LVMPD.
Upon inquiry, the USM advised the court that LVMPD had not
complied with the Subpoena. See Nov. 3, 2016 Order
to Show Cause (ECF No. 33). Thus, the court ordered LVMPD to
show cause, in writing, why it should not be held in contempt
and/or other sanctions imposed for violating the court's
order and failing to respond to the subpoena. The Order to
Show Cause further stated that providing the subpoenaed
information to the USM or alternatively, having the Custodian
of Records certify that LVMPD is unable to provide the
information and explaining why, would satisfy the court that
sanctions were not warranted.
November 14, 2016, LVMPD filed a Response (ECF No. 36) to the
Order to Show Cause explaining that its Risk Management
department inadvertently failed to respond to the subpoena
because there was a mix up with another of Plaintiff's
civil rights actions, Toliver v. LVMPD, Case No.
2:14-cv-00906-RFB-GWF. Additionally, LVMPD provided the
information requested in the Subpoena to allow the USM to
reattempt service to Corrections Officer Lee Doss (P#6305).
See Response (ECF No. 36) at Exhibit 1.
subsequently filed the Motion for Issuance of Summons (ECF
No. 40), asking the Clerk of the Court to issue summons for
service. He also expressed concern that the proof of service
deadline was approaching. The court finds that Mr. Toliver
has shown good cause to extend the time for service, and
therefore extends the service deadline until May 15,
court will direct the USM to reattempt service on Defendant
Doss at the address LVMPD provided in Exhibit 1 of its
Response. However, Mr. Toliver is cautioned that he is
ultimately responsible for providing the USM with accurate
and sufficient information to effectuate service. See
Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994). If
the USM is unable to serve Defendant Doss and he wishes to
have service attempted again, he must file a timely motion
specifying a more detailed name and/or address, or whether
some other manner of service should be attempted. Pursuant to
Rule 4(m), Mr. Toliver's failure to comply with this
Order by accomplishing service by May 15, 2017, will result
in a recommendation to the district judge that this case be
dismissed without prejudice.
reviewed and considered the matter, and for good cause
appearing, IT IS ORDERED:
Plaintiff George A. Toliver's Motion for Service by
Marshals (ECF No. 32) and Motion for Issuance of Summons (ECF
No. 40) are GRANTED.
Clerk of the Court shall reissue summons to Defendant Lee
Clerk of Court shall deliver one copy of the reissued
summons, Complaint (ECF No. 10), LVMPD's Response to the
Order to Show Cause (ECF No. 36), and this Order to the USM
USM shall use the information received from LVMPD in Exhibit
1 of its Response (ECF No. 36) to attempt to serve the
summons and complaint.
After attempting service, the USM shall redact the return of
service form(s) so that Defendant Doss' address and
telephone number are not made publically available and file a