Jobson v. Deschene

• Court: District Court, D. Massachusetts
• Decided: October 31, 2023
• Docket: 1:22-cv-10756
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

) JOSE JOBSON, ) ) Plaintiff, ) ) Civil Action No. v. ) 22-10756-FDS ) ROBERT J. DESCHENE, et al., ) ) Defendants. ) )

ORDER GRANTING MOTION TO AMEND COMPLAINT AND EXTENDING TIME LIMIT FOR SERVICE

SAYLOR, C.J.

On May 16, 2022, Jose Jobson, who at the relevant time was confined at the Souza- Baranowski Correctional Center (“SBCC”), filed a complaint under 42 U.S.C. § 1983 alleging that two correctional officers at SBCC violated his rights under the Eighth Amendment when they used excessive force against him. Jobson, who is proceeding pro se, has filed a motion for leave to file an amended complaint and seeking additional time to serve defendants. On August 1, 2022, the Court issued an order granting the motion for leave to proceed in forma pauperis, directing the clerk to issue summonses for the defendants, and denying the motion for appointment of counsel without prejudice. Plaintiff had 90 days from the date of the issuance of the summonses to complete service. The order noted that failure to comply with this deadline may result in dismissal of the case without prior notice to plaintiff. See Fed. R. Civ. P. 4(m); L.R. 4.1 (D. Mass.). Service is completed when a defendant receives the summons and complaint in accordance with Fed. R. Civ. P. 4, not when the U.S. Marshals Service receives the papers to be served on a defendant. Plaintiff must provide papers for service to the U.S. Marshals Service well before the 90-day service deadline to ensure that service will be completed in a timely matter. Moreover, summonses must be served as to each defendant; therefore, multiple copies of each required document may be necessary for a case with multiple defendants.

On October 31, 2022, the U.S. Marshal returned the summons unexecuted as to defendant John J. Madden. The marshal indicated “subject no longer works there.” No summons were returned—either executed or unexecuted—as to defendants Robert J. Deschene or David Shaw. On October 6, 2023, plaintiff filed a motion for leave to file an amended complaint. That request will be granted. The Court will also construe the motion as a motion for an extension of time to complete service in light of plaintiff’s pro se status and his request for “additional time to serve the defendants if they have not been already served.” See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“[A] document filed pro se is to be liberally construed and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976) (internal citations and

quotation marks omitted)). Under Fed. R. Civ. P. 4(m), if a plaintiff “shows good cause” for failure to serve within 90 days, “the court must extend the time for service for an appropriate period.” “Good cause” for failure to complete service in a timely fashion may include, but is not limited to, circumstances where the U.S. Marshals Service or district court has failed to fulfill its obligations. See Laurence v. Wall, 551 F.3d 92, 94 (1st Cir. 2008). Although the reasons why service was not effected on defendants Deschene or Shaw are not explained on the record, plaintiff is an incarcerated prisoner, and presumably faces a number of hurdles in obtaining the relevant addresses. Under the circumstances, the Court finds good cause to extend the time for service. See id. at 93-94. Upon review of the motion, the Court hereby orders as follows: 1. Plaintiff’s motion to amend the complaint is GRANTED.

2. Plaintiff’s motion for an extension of time to complete service is GRANTED. Plaintiff shall have 90 days from the date of this order (that is, by January 29, 2024) to complete service of the amended complaint. Failure to comply with this deadline may result in dismissal of the case without prior notice to plaintiff. See Fed. R. Civ. P. 4(m); L.R. 4.1 (D. Mass.). So Ordered. /s/ F. Dennis Saylor IV F. Dennis Saylor IV Chief Judge, United States District Court Dated: October 31, 2023