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Johnson v. Law Library

United States District Court, D. Nevada

April 17, 2019

LAUSTEVEION JOHNSON, Plaintiff,
v.
LAW LIBRARY, et al., Defendants.

          ORDER (MOT. ISSUE SUMMONS - ECF NO. 14)

          PEGGY A. LEEN UNITED STATES MAGISTRATE JUDGE

         This 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.

         BACKGROUND

         Mr. 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).

         The 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.

         On 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).

         Because 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.

         If the 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.

         Having reviewed an considered the matter, IT IS ORDERED:

         1. Plaintiff Lausteveion Johnson's Motion Requesting Issuance of Summons (ECF No. 14) is GRANTED.

         2. Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, the deadline to complete service is July 16, 2019.

         3. The 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.

         4. The Clerk of the Court shall MAIL Mr. Johnson two (2) blank USM-285 forms along with instructions and a copy of this Order.

         5. Mr. Johnson must complete the USM-285 forms (except for defendants' addresses) and mail them directly to the USM. ...


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