Cunningham v. Ramos

Opinion

2 3 4 5 6 7 10 11 MELVIN LYNN CUNNINGHAM, JR., Case No.: 23cv351-JAH (MSB)

12 Plaintiff, ORDER: (1) GRANTING EXTENSION OF 13 v. TIME TO EFFECT SERVICE PURSUANT TO FED. R. CIV. P. 4(m);

15 Defendant. (2) DIRECTING CLERK OF COURT TO CORRECT THE DOCKET AND RE-ISSUE 16 SUMMONS UPON DEFENDANT 17 ALBERTO RAMOS; AND

18 (3) ORDERING U.S. MARSHAL 19 TO EFFECT SERVICE PURSUANT TO FED. R. CIV. P. 4(c)(3) 20 21 23 Plaintiff Melvin Lynn Cunningham, Jr. (“Plaintiff”) is a state prisoner proceeding 24 pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. 25 (ECF Nos. 1 & 8.) On August 7, 2023, the Court screened Plaintiff’s Complaint pursuant 26 to 28 U.S.C. §§ 1915(e)(2) & 1915A; found Plaintiff alleged plausible First and Eighth 27 Amendment claims against Defendant Ramos; dismissed Plaintiff’s claims against 2 at 5‒9.) On February 1, 2024, Plaintiff filed a Notice of Intent to proceed against 3 Defendant Ramos. (ECF No. 14.) On February 27, 2024, the Court dismissed Defendant 4 Mora and directed the Clerk to issue a summons as to Plaintiff’s Complaint upon 5 “Defendant Alfonso Ramos.” (ECF No. 16 at 5‒6.) The Court further directed the U.S. 6 Marshal to effect service upon Defendant pursuant to 28 U.S.C. § 1915(d) and Fed. R. 7 Civ. P. 4(c)(3). (Id. at 6.) 8 On July 12, 2024, the Summons was returned unexecuted. (ECF No. 18.) In an 9 accompanying letter, the Litigation Coordinator at Richard J. Donovan Correctional 10 Facility (“RJD”) stated, “I am refusing service . . . due to the inability to identify any staff 11 member with this name after a thorough search of our records and files to match the 12 date and location provided in the complaint.” (Id. at 2.) On August 19, 2024, Plaintiff 13 filed a letter explaining: “I got a letter back stating they could not locate Alfonso Ramos 14 with the information I provided and said they will not serve it. I completed the form out 15 to the best of my ability. Mr. Ramos no longer works at R.J.D and I have no way to find 16 him. So can you please let me know how to proceed.” (ECF No. 19 at 1.) On September 17 26, 2024, the Court granted Plaintiff an extension of time to effect service and directed 18 the Clerk to re-issue a summons as to Plaintiff’s Complaint upon “Defendant Alfonso 19 Ramos.” (ECF No. 20 at 3.) In its Order, the Court noted it is Plaintiff’s responsibility to 20 remedy any service defects of which he has knowledge and directed Plaintiff to “provide 21 additional information to the U.S. Marshal Service so it can locate and effectuate 22 service.” (Id. (citing Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990).) 24 Presently before the Court are two letters filed by Plaintiff on October 8, 2024. 25 (See ECF Nos. 22‒23.) In the first letter, Plaintiff explains that he recently learned 26 Defendant’s correct name is “Alberto Ramos,” not “Alfonso Ramos.” (ECF No. 22 at 1

27 (emphasis added).) Plaintiff believes the erroneous first name is the reason the RJD 2 Defendant’s correct name is “Alberto Ramos.” (ECF No. 23 at 1.) Plaintiff asks the Court 3 for guidance of how to proceed now that he knows Defendant’s correct first name is 4 “Alberto.” (Id.) The Court liberally construes the letters as a request for an extension of 5 time to execute service on Defendant. See Bernhardt v. Los Angeles Cnty., 339 F.3d 920, 6 925 (9th Cir. 2003) (“Courts have a duty to construe pro se pleadings liberally, including 7 pro se motions as well as complaints.”) 8 Federal Rule of Civil Procedure 4(m) provides that: 9 [i]f a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss 10 the action without prejudice against the defendant or order that service be 11 made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate 12 period. 13 Fed. R. Civ. P. 4(m). “[A]n incarcerated pro se plaintiff proceeding in forma pauperis is 14 entitled to rely on the U.S. Marshal for service of the summons and complaint, and, 15 having provided the necessary information to help effectuate service, plaintiff should 16 not be penalized by having his or her action dismissed for failure to effect service[.]” 17 See Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). However, a pro se plaintiff 18 must “attempt to remedy any apparent service defects of which [he] has knowledge.” 19 Id. at 274 (quoting Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir.1987)). 20 Here, it appears Plaintiff’s inability to effectuate service upon Defendant Ramos 21 was due to the erroneous use of the first name “Alfonso.” After the Court instructed 22 Plaintiff to provide additional information to the U.S. Marshal Service, Plaintiff 23 discovered Defendant Ramos’s correct first name, “Alberto,” and notified the Court of 24 this mistake. (ECF Nos. 22‒23.) Thus, the Court finds Plaintiff has established good 25 cause for his failure to serve Defendant Ramos up to this point. See Mann v. American 26 Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003) (holding a district court may, under the 27 broad discretion granted by Fed. R. Civ. P. 4(m), extend time for service retroactively 2 pursuant to Fed. R. Civ. P. 4(m). Further, the Court: 3 1. DIRECTS the Clerk of Court to correct the docket by replacing “Alfonso Ramos” 4 with “Alberto Ramos” as the Defendant. 5 2. DIRECTS the Clerk of Court to re-issue a summons as to Plaintiff’s Complaint upon 6 Defendant Ramos and to forward that summons to Plaintiff along with a blank 7 U.S. Marshal Form 285. In addition, the Clerk will provide Plaintiff with certified 8 copies of this Order; the Complaint [ECF No. 1]; the August 7, 2023 Order granting 9 Plaintiff’s Motion to Proceed In Forma Pauperis [ECF No. 8]; the February 27, 2024 10 Order directing U.S. Marshal Service [ECF No. 16]; and the September 26, 2024 11 Order extending time for service [ECF No. 20]. 12 3. DIRECTS Plaintiff, upon receipt of this “IFP Package,” to complete the U.S. 13 Marshal Form 285 as completely and accurately as possible, include an address 14 where Defendant Ramos may be found and/or subject to service, and return the 15 IFP Package to the U.S. Marshal according to the instructions the Clerk provides in 16 the letter accompanying the IFP package, no later than November 8, 2024. 17 4. ORDERS the U.S. Marshal to serve a copy of Plaintiff’s Complaint and summons 18 upon Defendant Ramos as directed by Plaintiff on the U.S. Marshal Form 285 19 provided and file an executed waiver or proof of personal service upon Defendant 20 Alberto Ramos with the Clerk of Court no later than December 6, 2024. All costs 21 of U.S. Marshal service will be advanced by the United States; however, if a 22 Defendant located within the United States fails, without good cause, to sign and 23 return the waiver requested by the Marshal on behalf of Plaintiff, the Court will 24 impose upon the Defendant any expenses later incurred in making service. See 25 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). 26 5. ORDERS Defendant Ramos, once served, to reply to Plaintiff’s Complaint, and any

27 subsequent pleading Plaintiff may file in this matter naming him as a party, within 1 6. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to serve 2 upon Defendant Ramos, or if appearance has been entered by counsel, upon 3 Defendant’s counsel, a copy of every further pleading, motion, or other document 4 submitted for the Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff 5 must include with every original document he seeks to file with the Clerk of the 6 Court, a certificate stating the manner in which a true and correct copy of that 7 document has been served on Defendant Ramos or his counsel, and the date of 8 that service. See S.D. Cal. CivLR 5.2. 10 || Dated: October 15, 2024 _ = _ 2 FF D Honorable Michael S. Berg United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28