United States District Court, D. Nevada
FERENBACH UNITED STATES MAGISTRATE JUDGE
the court are Plaintiff's Request for Service by U.S.
Marshal's Office or Alternatively, Motion to Unseal Ryan
Gillmore's Last Known Address (ECF NO. 49) and Motion for
Extension of Time to Serve Ryan Gillmore (ECF NO. 50).
action is a pro se civil rights complaint filed
pursuant to 42 U.S.C. § 1983 by a state prisoner.
Plaintiff submitted an application to proceed in forma
pauperis. (ECF No. 1). Based on the financial
information provided on Plaintiff's application to
proceed in forma pauperis, the Court found that
Plaintiff was unable to prepay the full filing fee in this
matter. (ECF No. 14). The Court ordered that service must be
perfected by April 29, 2019. Id. The Attorney
General's office acceptance service on behalf of
Defendants Regina Barrett, Christopher Harris, Julio Mesa
(believed to be sued as “Mesa”), and Timothy
Knatz (believed to be sued as “Knatz”). The
AG's Office did not accept service on former NDOC
employee Ryan Gillmore and his address was filed under seal.
(ECF Nos. 15 & 16). Plaintiff filed his first motion for
issuance and service of Summons on Ryan Gillmore on March 13,
2019. (ECF No. 18).
filed Defendants' motion to revoke Plaintiff's Pauper
Status because Plaintiff had received a large settlement
payment (ECF No. 20).
April 25, 2019, the court granted Defendants' motion and
revoked Plaintiff's in forma pauperis status.
Plaintiff was ordered to pay the complete filing fee. (ECF
No. 30). In the same order, Plaintiff's Motion for
Issuance and Service of Summons for Ryan Gillmore (ECF No.
18) was denied without prejudice. Id. On May 14,
2019, Plaintiff paid the full filing fee. (ECF No. 40).
6, 2019, Summons on Ryan Gillmore was returned unexecuted due
to lack of address by the U.S. Marshal. (ECF No. 47). This
Summons was not issued by the Court. It appears that Johnson
filled out a blank Summons form and asked the U.S. Marshal to
effectuate service of process on Ryan Gillmore without the
18, 2019, the Court sent Plaintiff a Notice Regarding
Intention to Dismiss Pursuant to Rule 4(m) as to Gillmore.
The Notice states that proof of service on Gillmore must be
filed with the clerk by July 18, 2019 and that service on the
Gillmore must have taken place prior to the expiration of the
time limit set forth in Fed.R.Civ.P. 4(m), or good cause must
be shown as to why such service was not made in that period.
(ECF No. 48). On June 27, 2019, Plaintiff filed two motions
requesting a 90 extension of time to perfect service on
Gillmore and for the U.S. Marshal to serve Gillmore or
alternatively to unseal Gillmore's last known address.
(ECF Nos. 49 & 50).
the past several years, Plaintiff has filed 32 cases in this
court. Plaintiff is familiar with this court's rules on
service and issuance of Summons. He has filed motions to
extend the time to perfect service and requests for the U.S.
Marshal to serve in his other cases. Johnson is an
experienced pro se litigant.
Civ. P. 4(m) requires a defendant to be served within 90 days
after the complaint is filed. If “the plaintiff shows
good cause for the failure [to serve a defendant within that
time-frame], the court must extend the time for service for
an appropriate period.” Fed.R.Civ.P. 4(m).
time to perfect service ended on April 29, 2019. ECF No. 14.
Plaintiff has not given good cause to extend the time to
serve Gillmore. Plaintiff's reason for an extension is
that the U.S. Marshal attempted to serve Gillmore once and
was unsuccessful. (ECF No. 50). Here, Johnson had asked the
U.S. Marshal, without the Court's permission, to
effectuate service of process on Ryan Gillmore with an
unissued Summons. (ECF No. 47). Johnson knows that he needs
the court to first issue the Summons and the court must give
him permission for service to be made by the U.S. Marshal. In
ECF No. 18, Johnson requested issuance and service on
Gillmore. This motion was denied without prejudice because
Johnson's IFP status was revoked. Johnson paid his filing
fee on May 14, 2019. (ECF NO. 40). The instant motion was
filed on June 27, 2019 after the court sent him a notice of
intent to dismiss pursuant to Rule 4(m). Plaintiff has not
given good cause to extend the time to perfect service on
Gillmore. Plaintiff knows the rule on service and he simply
chose to not abide by it.
IT IS HEREBY ORDERED that Plaintiff's Motion for
Extension of Time to Serve Ryan Gillmore (ECF NO. 50) is
FURTHER ORDERED that Plaintiff's Request for Service by
U.S. Marshal's Office or Alternatively, Motion to Unseal