1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Tony Hobson, 2:22-cv-02088-JAD-MDC 4 Plaintiff, ORDER 5 vs. 6 CO Harper, et al., 7 Defendants. 8 Pending before the Court is plaintiff’s Motion for Service (ECF No. 58), and Motion for Order 9 Granting Motion (“Motion for Order”) (ECF No. 61). For the reasons stated below, the Court GRANTS 10 in part and DENIES in part the Motion for Service and DENIES the Motion for Order. 11 DISCUSSION 12 I. BACKGROUND 13 This is a civil action under 42 U.S.C. § 1983 arising out of an alleged violation of plaintiff’s First 14 and Eighth Amendment rights. Plaintiff brings a First Amendment retaliation claim and an Eighth 15 Amendment harassing cell search claim against defendants. Before this Court are plaintiff’s Motion for 16 Service (ECF No. 58) and Motion for Order (ECF No. 61). Plaintiff seeks to serve the remaining 17 unserved defendants. 18 II. MOTION FOR SERVICE 19 A. Legal Standard 20 A plaintiff who is an incarcerated and proceeding pro se is entitled to rely on the U.S. Marshal 21 for service. Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990) (an incarcerated pro se plaintiff 22 proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the summons and 23 complaint by providing the "necessary information to help effectuate service"); see also 28 U.S.C. § 24 1915(d); Fed. R. Civ. P. 4(c)(3); Chavez v. Robinson, 817 F.3d 1162, 1166 n.2 (9th Cir. 2016), as 25 1 amended on reh’g (Apr. 15, 2016) (“[Section] 1915(d) provides that when a plaintiff is proceeding IFP, 2 ‘the officers of the court shall issue and serve all process.’”). 3 B. Analysis 4 This appears to be plaintiff’s third attempt to serve defendants Boone and Ruiz. See ECF Nos. 5 46, 53, and 58. The Court has previously granted plaintiff’s motions to serve the remaining two 6 defendants Boone and Ruiz. However, to date, all attempts have been unsuccessful. Plaintiff seeks 7 another attempt to serve defendants Boone and Ruiz. ECF No. 58 8 a. Service On Defendant Boone 9 Plaintiff proposes to serve defendant Boone at either “North Town Jail” or “Metro.” ECF No. 58 10 at 4. The Court finds that good cause exists to attempt marshal service upon defendant Boone at his two 11 potential places of employment. Plaintiff has been diligent in attempting to serve defendant Boone and 12 has made efforts to identify other areas where Boone can be located and served. Therefore, the Court 13 will grant plaintiff’s request for marshal service upon defendant Boone. 14 b. Service On Defendant Ruiz 15 Plaintiff proposes to either serve a relative who works at the prison or have the Office of the 16 Attorney General accept service on behalf of defendant Ruiz. Id. at 4-5. 17 The Federal Rules of Civil Procedure state in relevant part that:
18 (e) Serving an Individual Within a Judicial District of the United States. Unless federal law provides otherwise, an individual—other than a minor, an incompetent person, or a 19 person whose waiver has been filed—may be served in a judicial district of the United States by: 20 (1) following state law for serving a summons in an action brought in courts of 21 general jurisdiction in the state where the district court is located or where service is made; or 22 (2) doing any of the following: (A) delivering a copy of the summons and of the complaint to the individual 23 personally; (B) leaving a copy of each at the individual’s dwelling or usual place of a 24 bode with someone of suitable age and discretion who resides there; or (C) delivering a copy of each to an agent authorized by appointment or by 25 law to receive service of process. 1 Fed. R. Civ. P. 4(e) 2 The Nevada Rules of Civil Procedure state in relevant part that:
3 (a) Serving an Individual. Unless otherwise provided by these rules, service may be made on an individual: 4 (1) by delivering a copy of the summons and complaint to the individual personally; (2) by leaving a copy of the summons and complaint at the individual’s dwelling 5 or usual place of abode with a person of suitable age and discretion who currently 6 resides therein and is not an adverse party to the individual being served; or (3) by delivering a copy of the summons and complaint to an agent authorized by 7 appointment or by law to receive service of process. 8 Nev. R. Civ. P. 4.2(a). 9 The Court cannot grant plaintiff’s request to serve defendant Ruiz through his relative nor can 10 the Court order the Office of the Attorney General to accept service. Both the state and federal rules 11 make is clear that service must be completed on the individual or on an authorized agent. It appears that 12 plaintiff cannot locate defendant Ruiz and seeks to serve a relative. However, there is no indication that 13 the relative is an agent authorized to receive service on behalf of Ruiz. Therefore, the Court cannot grant 14 plaintiff’s request to serve Ruiz’s relative. For the same reasons, the Court “cannot order the Attorney 15 General’s Office to accept service for a defendant who is no longer employed by the Nevada 16 Department of Corrections and who has not consented to representation by the Office of the Attorney 17 General.” See Hernandez v. Russel, 2022 U.S. Dist. LEXIS 184785, at *4 (D. Nev. Jan. 10, 2022). 18 III. MOTION FOR ORDER GRANTING MOTION 19 Because the Court has issued an Order resolving the Motion for Service (ECF No. 58), the Court 20 denies the Motion for Order (ECF No. 61) as moot. 21 22 ACCORDINGLY, 23 IT IS ORDERED that: 1. The Motion for Service (ECF No. 58) is GRANTED in part and DENIED in part as follows: 24 25 a. The Motion is GRANTED in part to the extent that plaintiff seeks to serve defendant Boone at either “North Town Jail” or “Metro.” b. The Motion is DENIED in part to the extent plaintiff seeks to serve defendant ° Ruiz through his relative. c. The Motion is DENIED in part to the extent plaintiff seeks to compel the Office ° of the Attorney General accept service on behalf of defendant Ruiz. 6 2. The Clerk of Court is kindly directed send Plaintiff three blank copies of form USM-285. 7 3. Plaintiff shall have 21 days from the date of this Order to fill out the required USM-285 forms and send it to the U.S. Marshals Service, 333 Las Vegas Blvd. South, Suite 2058, Las Vegas NV 89101. ° 4. The Clerk of Court is directed to issue summons for the defendants Boone and Ruiz, if 10 needed. 11 5. The Clerk of Court is kindly directed to serve a copy of this order, the summons, and the 12 operative complaint (ECF No. 7) on the U.S. Marshals Service. B 6. Upon receipt of the USM-285 form, the U.S. Marshals Service shall, in accordance with Federal Rule of Civil Procedure 4(c)(3), attempt service on the defendants. 7. Within 21 days after plaintiff receives copy of the completed USM-285 forms from the U.S. 15 Marshal, plaintiff must file a notice with the court stating if defendant was served. 16 8. The Motion for Order (ECF No. 61) is DENIED as moot. DATED this 23 day of April 2025. fe), a IT IS SO ORDERED. fs 2 hj \ 19 the Mf | □□ “ Hon. Maxiyyliano .
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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Tony Hobson, 2:22-cv-02088-JAD-MDC 4 Plaintiff, ORDER 5 vs. 6 CO Harper, et al., 7 Defendants. 8 Pending before the Court is plaintiff’s Motion for Service (ECF No. 58), and Motion for Order 9 Granting Motion (“Motion for Order”) (ECF No. 61). For the reasons stated below, the Court GRANTS 10 in part and DENIES in part the Motion for Service and DENIES the Motion for Order. 11 DISCUSSION 12 I. BACKGROUND 13 This is a civil action under 42 U.S.C. § 1983 arising out of an alleged violation of plaintiff’s First 14 and Eighth Amendment rights. Plaintiff brings a First Amendment retaliation claim and an Eighth 15 Amendment harassing cell search claim against defendants. Before this Court are plaintiff’s Motion for 16 Service (ECF No. 58) and Motion for Order (ECF No. 61). Plaintiff seeks to serve the remaining 17 unserved defendants. 18 II. MOTION FOR SERVICE 19 A. Legal Standard 20 A plaintiff who is an incarcerated and proceeding pro se is entitled to rely on the U.S. Marshal 21 for service. Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990) (an incarcerated pro se plaintiff 22 proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the summons and 23 complaint by providing the "necessary information to help effectuate service"); see also 28 U.S.C. § 24 1915(d); Fed. R. Civ. P. 4(c)(3); Chavez v. Robinson, 817 F.3d 1162, 1166 n.2 (9th Cir. 2016), as 25 1 amended on reh’g (Apr. 15, 2016) (“[Section] 1915(d) provides that when a plaintiff is proceeding IFP, 2 ‘the officers of the court shall issue and serve all process.’”). 3 B. Analysis 4 This appears to be plaintiff’s third attempt to serve defendants Boone and Ruiz. See ECF Nos. 5 46, 53, and 58. The Court has previously granted plaintiff’s motions to serve the remaining two 6 defendants Boone and Ruiz. However, to date, all attempts have been unsuccessful. Plaintiff seeks 7 another attempt to serve defendants Boone and Ruiz. ECF No. 58 8 a. Service On Defendant Boone 9 Plaintiff proposes to serve defendant Boone at either “North Town Jail” or “Metro.” ECF No. 58 10 at 4. The Court finds that good cause exists to attempt marshal service upon defendant Boone at his two 11 potential places of employment. Plaintiff has been diligent in attempting to serve defendant Boone and 12 has made efforts to identify other areas where Boone can be located and served. Therefore, the Court 13 will grant plaintiff’s request for marshal service upon defendant Boone. 14 b. Service On Defendant Ruiz 15 Plaintiff proposes to either serve a relative who works at the prison or have the Office of the 16 Attorney General accept service on behalf of defendant Ruiz. Id. at 4-5. 17 The Federal Rules of Civil Procedure state in relevant part that:
18 (e) Serving an Individual Within a Judicial District of the United States. Unless federal law provides otherwise, an individual—other than a minor, an incompetent person, or a 19 person whose waiver has been filed—may be served in a judicial district of the United States by: 20 (1) following state law for serving a summons in an action brought in courts of 21 general jurisdiction in the state where the district court is located or where service is made; or 22 (2) doing any of the following: (A) delivering a copy of the summons and of the complaint to the individual 23 personally; (B) leaving a copy of each at the individual’s dwelling or usual place of a 24 bode with someone of suitable age and discretion who resides there; or (C) delivering a copy of each to an agent authorized by appointment or by 25 law to receive service of process. 1 Fed. R. Civ. P. 4(e) 2 The Nevada Rules of Civil Procedure state in relevant part that:
3 (a) Serving an Individual. Unless otherwise provided by these rules, service may be made on an individual: 4 (1) by delivering a copy of the summons and complaint to the individual personally; (2) by leaving a copy of the summons and complaint at the individual’s dwelling 5 or usual place of abode with a person of suitable age and discretion who currently 6 resides therein and is not an adverse party to the individual being served; or (3) by delivering a copy of the summons and complaint to an agent authorized by 7 appointment or by law to receive service of process. 8 Nev. R. Civ. P. 4.2(a). 9 The Court cannot grant plaintiff’s request to serve defendant Ruiz through his relative nor can 10 the Court order the Office of the Attorney General to accept service. Both the state and federal rules 11 make is clear that service must be completed on the individual or on an authorized agent. It appears that 12 plaintiff cannot locate defendant Ruiz and seeks to serve a relative. However, there is no indication that 13 the relative is an agent authorized to receive service on behalf of Ruiz. Therefore, the Court cannot grant 14 plaintiff’s request to serve Ruiz’s relative. For the same reasons, the Court “cannot order the Attorney 15 General’s Office to accept service for a defendant who is no longer employed by the Nevada 16 Department of Corrections and who has not consented to representation by the Office of the Attorney 17 General.” See Hernandez v. Russel, 2022 U.S. Dist. LEXIS 184785, at *4 (D. Nev. Jan. 10, 2022). 18 III. MOTION FOR ORDER GRANTING MOTION 19 Because the Court has issued an Order resolving the Motion for Service (ECF No. 58), the Court 20 denies the Motion for Order (ECF No. 61) as moot. 21 22 ACCORDINGLY, 23 IT IS ORDERED that: 1. The Motion for Service (ECF No. 58) is GRANTED in part and DENIED in part as follows: 24 25 a. The Motion is GRANTED in part to the extent that plaintiff seeks to serve defendant Boone at either “North Town Jail” or “Metro.” b. The Motion is DENIED in part to the extent plaintiff seeks to serve defendant ° Ruiz through his relative. c. The Motion is DENIED in part to the extent plaintiff seeks to compel the Office ° of the Attorney General accept service on behalf of defendant Ruiz. 6 2. The Clerk of Court is kindly directed send Plaintiff three blank copies of form USM-285. 7 3. Plaintiff shall have 21 days from the date of this Order to fill out the required USM-285 forms and send it to the U.S. Marshals Service, 333 Las Vegas Blvd. South, Suite 2058, Las Vegas NV 89101. ° 4. The Clerk of Court is directed to issue summons for the defendants Boone and Ruiz, if 10 needed. 11 5. The Clerk of Court is kindly directed to serve a copy of this order, the summons, and the 12 operative complaint (ECF No. 7) on the U.S. Marshals Service. B 6. Upon receipt of the USM-285 form, the U.S. Marshals Service shall, in accordance with Federal Rule of Civil Procedure 4(c)(3), attempt service on the defendants. 7. Within 21 days after plaintiff receives copy of the completed USM-285 forms from the U.S. 15 Marshal, plaintiff must file a notice with the court stating if defendant was served. 16 8. The Motion for Order (ECF No. 61) is DENIED as moot. DATED this 23 day of April 2025. fe), a IT IS SO ORDERED. fs 2 hj \ 19 the Mf | □□ “ Hon. Maxiyyliano . Couvillier II] 20 United Stat¢s Magistrate Judge ry 22 NOTICE 23 Pursuant to Local Rules IB 3-1 and IB 3-2, a party may object to orders and reports and 24 recommendations issued by the magistrate judge. Objections must be in writing and filed with the Clerk 25 || of the Court within fourteen days. LR IB 3-1, 3-2. The Supreme Court has held that the courts of appeal
1 may determine that an appeal has been waived due to the failure to file objections within the specified 2 time. Thomas v. Arn, 474 U.S. 140, 142 (1985). 3 This circuit has also held that (1) failure to file objections within the specified time and (2) 4 failure to properly address and brief the objectionable issues waives the right to appeal the District 5 Court's order and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 6 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 7 Pursuant to LR IA 3-1, the plaintiff must immediately file written notification with the court of any 8 change of address. The notification must include proof of service upon each opposing party’s attorney, 9 or upon the opposing party if the party is unrepresented by counsel. Failure to comply with this rule may 10 result in dismissal of the action.
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