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White v. Leavitt

United States District Court, D. Nevada

April 16, 2019

TONEY ANTHONEY WHITE, Plaintiff,
v.
MICHELLE LEAVITT, et al., Defendants.

          ORDER

          PEGGY A. LEEN UNITED STATES MAGISTRATE JUDGE.

         This matter is before the court on Plaintiff Toney Anthoney White's election not to file an amended complaint. This matter is 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.

         Mr. White is a pretrial detainee in custody at the Clark County Detention Center (“CCDC”). He is proceeding in this case in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915 and LSR 1-1 of the Local Rules of Practice. This case involves White's allegations of civil rights violations pursuant to 42 U.S.C. § 1983 while he was incarcerated at CCDC. The court reviewed the Complaint (ECF No. 4) and determined that it stated a plausible claim for failure-to-protect against corrections officer Carey. Nov. 28, 2018 Screening Order (ECF No. 3). However, his conspiracy claim was dismissed with leave to amend by December 27, 2018, to correct pleading defects. Id. The court explained that this action would “proceed immediately on the failure-to-protect claim against Carey only” if White did not file an amended complaint. Id. at 8-9.

         Mr. White did not submit an amended complaint by the deadline. The court therefore entered an Order (ECF No. 5) on January 8, 2019, stating that this action will proceed against Defendant Carey. The Clerk of Court was directed to issue summons to Defendant Carey and mail White one USM-285 form to arrange for service of process. Id.

         Mr. White subsequently requested a stay of the proceedings and extension of time to file an amended complaint. ECF Nos. 7-8. The court denied an indefinite stay of proceedings, but granted an extension of the deadline to amend until March 25, 2019. Feb. 22, 2019 Order (ECF No. 9). The court further ordered that, if White did not to file an amended complaint by March 25, 2019, this case would “proceed as to the failure-to-protect claim against Defendant Carey only, ” and White would be given 90 days to serve the original Complaint (ECF No. 4) in accordance with Rule 4(m) of the Federal Rules of Civil Procedure.

         To date, Mr. White has not filed an amended complaint or requested an extension of time in which to do so. The court will therefore direct service of the Complaint (ECF No. 4).[1]

         Accordingly, IT IS ORDERED:

         1. Plaintiff Toney Anthoney White is advised to carefully review Rule 4 of the Federal Rules of Civil Procedure in order to properly serve Defendant Carey. Pursuant to Rule 4(m), White must complete service on or before July 16, 2019.

         2. The Clerk of Court shall re-issue summons to Defendant Carey, and deliver the summons and a copy of the Complaint (ECF No. 4) to the U.S. Marshal for service, along with a copy of this Order.

         3. The Clerk of Court shall MAIL Mr. White one (1) blank USM-285 Form along with instructions for completing the form.

         4. By May 17, 2019, the USM must receive White's completed USM-285 forms via mail to attempt service.[2]

         5. Once the USM-285 forms are received, the USM shall attempt service on the defendant.

         6. After attempting service, the USM shall file notice with the court, and serve the notice on White, indicating whether the defendant was served.

         7. If the USM is unable to serve the defendant and Mr. White wishes to have service attempted again, White must timely file a motion specifying a more detailed name and/or address for the defendant, ...


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