Hamilton v. Moseley

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 DANNY HAMILTON, Case No.: 21cv2032-CAB-AHB CC22MX910/CDCR #T61263, 10 ORDER REGARDING DOCKET Plaintiff, 11 NOS. 42 AND 44 vs. 12

13 KATHLEEN ALLISON, Secretary of the 14 California Department of Corrections and 15 Rehabilitation, et al., 16 Defendants. 17 18 Danny Hamilton (Plaintiff) is a state inmate currently incarcerated at the Contra 19 Costa County West County Detention Facility. He is proceeding pro se, but not in forma 20 pauperis, and has filed a civil rights Complaint (and First Amended Complaint) pursuant 21 to 42 U.S.C. § 1983 (ECF Nos. 1 and 8). 22 On July 29, 2022, Plaintiff filed a Motion to Order Attorney General and Court’s 23 Pro Se Prisoner Litigation Office to Provide Addresses for Service on the Not Served 24 Defendants (“Motion for Addresses”). [Doc. No. 42.] On August 29, 2022, Plaintiff filed 25 a motion for: A) extension of time to respond to Defendant Mohamed’s motion to 26 dismiss; B) extension of service time to receive Court’s response to Plaintiff’s motion for 27 addresses; and C) extension of time to locate and serve the not served defendants. [Doc. 28 No. 44.] 1 A. Motion For Addresses. 2 In the Motion for Addresses [Doc. No. 42], Plaintiff asks the Court to order the Pro Se 3 Litigation Office or the U.S. Marshals to locate and serve the unserved defendants. [Doc. 4 No. 42.] As stated in this Court’s order of July 13, 2022 regarding a similar request made 5 by Plaintiff, the Court has limited authority to order service by the U.S. Marshal, 6 especially when Plaintiff is not proceeding in forma pauperis and when Plaintiff does not 7 know the whereabout of the defendants. [See Doc. No. 40 at 3.] 8 Generally, a plaintiff “is responsible for having the summons and complaint served 9 within the time allowed by Rule 4(m) and must furnish the necessary copies to the person 10 who makes service.” Fed. R. Civ. P. 4(c)(1). When a plaintiff proceeds both pro se and in 11 forma pauperis, however, the Clerk of Court issues the summonses and causes service of 12 process to be effectuated by the United States Marshals Service on the defendants, 13 pursuant to 28 U.S.C. § 1915(d) and Federal Rule of Civil Procedure 4(c)(3). Here, 14 Plaintiff is pro se but has paid the court's filing fee; he has not been given permission to 15 proceed in forma pauperis. 16 However, “[a]t the plaintiff's request, the court may order that service be made by a 17 United States marshal or deputy marshal or by a person specially appointed by the court.” 18 Fed.R.Civ.P. 4(c)(3). Assuming Plaintiff is making such a request, he does not explain 19 why an alternative means, such as hiring a process server or investigator, would not be 20 effective. See Bozgoz v. Blackwell, No. 19-2790, 2021 WL 1518337, at *4 (D.D.C. Apr. 21 16, 2021) (requiring plaintiffs to explain why alternate methods of service “would prove 22 unsuccessful or futile ... such that the assistance of the USMS would be required”). See 23 also Judd v. Fed. Comm'cns Comm'n, 276 F.R.D. 1, 6 (D.D.C. 2011) (precluding pro se 24 prisoner not proceeding in forma pauperis from relying on United States Marshals 25 Service to effect service). Moreover, Plaintiff is going beyond asking for the U.S. 26 Marshal to serve defendants, because Plaintiff acknowledges that he does not know 27 where the defendants are located and therefore is requesting some sort of investigative 28 assistance. Again, Plaintiff provides no authority that would allow the Court to provide 1 || such investigative assistance, especially when Plaintiff is not proceeding in forma 2 || pauperis. Therefore, the Motion for Addresses [Doc. No. 42] is DENIED. 3 B. Motion for Extension to Respond to Motion to Dismiss. 4 Defendant requests a nine-month extension of time to respond to Defendant 5 ||Mohammed’s motion to dismiss. Plaintiff's motion [Doc. No. 44, Motion A] is 6 || GRANTED WITH MODIFICATION. The Court will provide Plaintiff with an 7 || additional thirty days to respond to the motion to dismiss. Plaintiff shall have until 8 || October 3, 2022, to file a response to the motion to dismiss and shall use his best efforts 9 ||to provide as comprehensive a response as possible given the confines of his access to 10 resources while incarcerated. 11 C. Motion for Extension of Service Time to Receive Court’s Response to Motion for 12 Addresses. 13 The Court has now ruled on the Motion for Addresses and, therefore, the Motion for 14 || Extension of Service Time to Receive Court’s Response [Doc. No. 44, Motion B] is 15 || DENIED AS MOOT. 16 D. Motion for Extension of Time to Locate and Serve Not Served Defendants. 17 Defendant requests an additional 90 days to locate and serve the not served 18 defendants. [Doc. No. 44, Motion C.] That motion is GRANTED WITH 19 || MODIFICATION. Plaintiff shall have until November 14, 2022, to locate and serve 20 || the not served defendants. 21 IT IS SO ORDERED. 22 ||Dated: September 2, 2022 € 23 Hon. Cathy Ann Bencivengo 24 United States District Judge 25 26 27 28 3