United States District Court, D. Nevada
Re-Serve Def. - ECF, 45
A. LEEN UNITED STATES MAGISTRATE JUDGE
matter is before the court on Plaintiff Joshua
Crittendon's Motion to Re-serve Defendant (ECF No. 45).
This Motions is referred to the undersigned pursuant to 28
U.S.C. § 636(b)(1)(A) and LR IB 1-3 of the Local Rules
Crittendon is a pretrial detainee currently in the custody of
the Clark County Detention Center (“CCDC”), and
he is proceeding in this civil action pro se and
in forma pauperis (“IFP”). This case
arises from his allegations, pursuant to 28 U.S.C. §
1983, that defendants violated his civil rights. Upon review
of the complaint, the court determined that it stated a
plausible § 1983 claims against five named defendants
for excessive force, deliberate indifference to serious
medical need, and unreasonable conditions of confinement, as
well as state law claims for assault and battery and medical
negligence. See Screening Order (ECF No. 30).
Crittendon also stated claims against doe defendants for
failure to protect (count I) and excessive force (count II).
February 6, 2018, the court entered an Order (ECF No. 40)
instructing the Clerk of the Court to deliver five completed
USM-285 forms (ECF Nos. 34-1, 38-1) to the U.S. Marshal
Service (“USMS”) to attempt service on Defendants
Williamson; C.O. Sanchez; Sgt. Rogers; C.O. Torres; and C.O.
Brown, P#15165. Pursuant to Rule 4(m) of the Federal Rules of
Civil Procedure, Mr. Crittendon was informed that the
deadline to accomplish service on these defendants is March
29, 2018. Order (ECF No. 40) at 5. Service was completed for
Defendants Rogers, Sanches, Torrez, Williamson. Summons
Returned Executed (ECF No. 41). However, service was not
completed for defendant Brown. Summons Returned Unexecuted
(ECF No. 42) (noting that service was not accepted because
P#15165 does not match the information on file).
4(m) states a defendant must be served within 90 days after a
complaint is filed. Id. The rule also provides that
a court must extend the time for service for an appropriate
period if a plaintiff shows good cause for his failure to
timely serve the complaint. Id. As a general matter,
a showing of good cause requires more than simple
inadvertence, mistake of counsel, or ignorance of the
procedural rules. Martin v. Longbeach, 246 F .3d 674
(9th Cir. 2000). “At a minimum, good cause means
excusable neglect.” Id.
cases involving an incarcerated indigent plaintiff, the USMS
will serve the summons and the complaint upon order of the
court. See Fed. R. Civ. P. 4(c)(3); 28 U.S.C. §
1915(d). An incarcerated plaintiff will not “be
penalized by having his action dismissed for failure to
effect service” if the USMS or the court clerk fail to
perform their duties. Puett v. Blandford, 912 F.2d
270, 275 (9th Cir. 1990). However, it is the plaintiff's
responsibility to provide the USMS with information necessary
to identify and locate each defendant to be served. See
Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994),
abrogated on other grounds, Sandin v.
Conner, 515 U.S. 472 (1995). “So long as the
prisoner has furnished the information necessary to identify
the defendant, the marshal's failure to effect service is
automatically good cause” for an extension of the
service deadline. Walker, 14 F.3d at 1422 (citation
omitted). Although an incarcerated plaintiff is entitled to
rely on the USMS for service of the summons and complaint,
that reliance is only proper when he has provided the USMS
with accurate and sufficient information to effectuate
service. Puett, 912 F.2d at 275; Walker, 14
F.3d at 1421-22.
Crittendon's Motion (ECF No. 45) identifies C.O. Brown as
an unserved defendant and asks the court to order the USMS to
re-attempt service on Brown with the corrected P#15615.
Crittendon has shown good cause to re-attempt service on
Brown, and the court will therefore grant the Motion. The
Clerk of the Court will be directed to reissue summons to
Brown and provide the same to the USMS to attempt service. If
the USMS is unable to serve Brown and Mr. Crittendon wishes
to have service attempted again, he must file a timely motion
providing more detailed information such as a complete name
and/or address for the unserved defendant, or whether some
other manner of service should be attempted. Crittendon is
ultimately responsible for providing the USMS with
information necessary to identify and locate each defendant
to be served. See Walker, 14 F.3d at 1422. Pursuant
to Rule 4(m), the service deadline is extended until
April 13, 2018. Mr. Crittendon's failure
to complete service by that deadline may result in a
recommendation to the district judge that the claims against
Defendant Brown be dismissed without prejudice.
Plaintiff s Motion to Re-serve Defendant (ECF No. 45) is
Clerk of the Court shall re-issue summons for Defendant CO.
Brown, P#15615, and deliver the summons to the USMS for
service along with a copy of the Complaint (ECF No. 31),
Brown's new USM-285 form (ECF No. 45 at 4), and this
After attempting service, the USMS shall file a notice with
the court indicating whether Defendant Brown was served, and
Mr. Crittendon will be mailed a copy of the same.
the USMS is unable to serve Defendant Brown, and Mr.
Crittendon wishes to have service attempted again, Crittendon
must file a motion with the court providing more information
such as a complete name and/or address for the unserved
defendant, or whether some other manner of service should be
Pursuant to Rule 4(m) of the Federal Rules of Civil
Procedure, the deadline to serve Defendant Brown ...