United States District Court, D. Nevada
ORDER (MOT. ISSUE SUMMONS - ECF NO. 14)
A. LEEN UNITED STATES MAGISTRATE JUDGE
matter is before the court on Plaintiff Lausteveion
Johnson's Motion Requesting Issuance of Summons (ECF No.
14). This Motion 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.
Johnson is a pro se prisoner in the custody of the Nevada
Department of Corrections (“NDOC”). He has
received permission to proceed in forma pauperis
(“IFP”) pursuant to 28 U.S.C. § 1915 and LSR
1-1 of the Local Rules of Practice. This case involves
Johnson's allegations of civil rights violations pursuant
to 42 U.S.C. § 1983. Mr. Johnson commenced this action
on May 8, 2017, by filing an IFP Application and a proposed
complaint. The court reviewed the complaint and issued a
Screening Order (ECF No. 4) instructing Johnson to file an
amended complaint to correct certain defects in his pleading.
Once he did so, see Am. Compl. (ECF No. 6), the
court rescreened the amended pleading and determined that
Johnson stated two plausible claims: (1) retaliation against
defendants Rashonda Smith and Rodrigo Espino (Count I), and
(2) violation of access to the courts against defendants
Rashonda Smith and Jo Gentry (Count III). Screening Order
(ECF No. 10).
court directed electronic service of the Amended Complaint on
the Nevada Office of the Attorney General (“Attorney
General”) and instructed that a notice be filed with
the court indicating the names of the defendants for whom the
Attorney General accepts service, and those it does not.
Id. at 7. If service could not be accepted for any
of the named defendants, the court ordered plaintiff to
“file a motion identifying the unserved defendant(s),
requesting issuance of a summons, and specifying a full name
and address for the defendant(s).” Id. at 8.
April 1, 2019, the Attorney General accepted service on
behalf of Defendant Rashonda Smith. See Notice
Acceptance of Service (ECF No. 11). However, service was not
accepted for Defendants Jo Gentry and Rodrigo Espino, which
prompted the Attorney General to file their last known
addresses under seal. See Notice of Sealed
Submission of Last Known Address (ECF No. 13); Sealed
Submission of Last Known Address (ECF No. 12).
the Attorney General did not accept service on their behalf,
Johnson's motion asks the court to issue summons for
Defendants Gentry and Espino using the last known addresses
filed under seal. In cases involving an incarcerated IFP
plaintiff, the USM 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). The Clerk of the Court
will be directed to issue summons to these defendants and
provide the U.S. Marshal Service (“USM”) with the
last known addresses to attempt service.
USM is unable to serve Defendants Gentry and/or Espino at
their last known address and Johnson wishes to have service
attempted again, he must file a timely motion specifying a
more detailed name and/or address for said defendant, or
whether some other manner of service should be attempted. Mr.
Johnson is ultimately responsible for providing the USM with
information necessary to 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). Pursuant to Rule 4(m), Mr.
Johnson's failure to comply with this Order by completing
service by July 16, 2019, will result in a
recommendation to the district judge that any unserved
defendant be dismissed without prejudice.
reviewed an considered the matter, IT IS
Plaintiff Lausteveion Johnson's Motion Requesting
Issuance of Summons (ECF No. 14) is GRANTED.
Pursuant to Rule 4(m) of the Federal Rules of Civil
Procedure, the deadline to complete service is July
Clerk of the Court shall ISSUE SUMMONS UNDER SEAL for
Defendants Jo Gentry and Rodrigo Espino and deliver the same
to the USM for service, along with a copy of the Amended
Complaint (ECF No. 6), Sealed Submission of Last Known
Address (ECF No. 12), and this Order.
Clerk of the Court shall MAIL Mr. Johnson two (2) blank
USM-285 forms along with instructions and a copy of this
Johnson must complete the USM-285 forms (except for
defendants' addresses) and mail them directly to the USM.