1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Case No.: 3:21-cv-00418-ART-CSD JEREMY R. POWELL, 4 Order Plaintiff 5 Re: ECF Nos. 27, 28 v. 6 CITY OF ELKO, et al., 7 Defendants 8
9 Plaintiff has filed a motion for entry of Clerk’s judgment under Federal Rule of Civil 10 Procedure 55(a) as to defendant Rosina (ECF No. 27), and a motion to have the U.S. Marshal 11 serve defendant Joanna (ECF No. 28). 12 I. BACKGROUND 13 Plaintiff filed this action regarding events that took place during his arrest and subsequent 14 confinement at the Elko County Jail. The court screened Plaintiff’s complaint and allowed him to 15 proceed with the following: (1) excessive force, equal protection and inadequate medical care 16 claims against Ortiz; (2) failure to intervene and inadequate medical care claims against Pepper; 17 (3) a failure to intervene claim against Sgt. Hood; (4) inadequate medical care claims against 18 Rosina, Joanna, and Adkins. (ECF Nos. 5, 9.) The court issued summonses for defendants Ortiz, 19 Pepper, Sgt. Hood, Rosina, Joanna and Adkins. (ECF Nos. 9-1 to 9-6.) 20 The U.S. Marshal returned the summonses as executed for each defendant, indicating that 21 service was effectuated on May 18, 2022. (ECF Nos. 14-19.) An answer has been filed by 22 defendants Adkins and Hood (ECF No. 20) and Ortiz and Pepper (ECF No. 22). 23 1 II. DISCUSSION 2 A. Motion for Entry of Clerk’s Default against Rosina 3 On June 28, 2022, Plaintiff filed a motion seeking entry of Clerks’ default under Rule 4 55(a) against defendant Rosina Garcia. (ECF No. 27.) Plaintiff states that Rosina was served by
5 the U.S. Marshal on May 18, 2022, and on May 24, 2022, Lt. D. Fisher effectuated personal 6 service on Rosina Garcia. Plaintiff argues that Rosina had until June 14, 2022, to file an answer 7 or otherwise appear in this action, but failed to do so. 8 Plaintiff attaches an exhibit that indicates that Rosina Garcia was personally served on 9 May 24, 2022. Therefore, it appears that Rosina Garcia was properly served under Federal Rule 10 of Civil Procedure 4(e)(2)(A). 11 Under Federal Rule of Civil Procedure 12(a)(1)(A)(i), a defendant must file an answer 12 within 21 days of being served. As such, Rosina Garcia had until June 14, 2022, to file an 13 answer. “When a party against whom a judgment for affirmative relief is sought has failed to 14 plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must
15 enter the party’s default.” Fed. R. Civ. P. 55(a). As Rosina Garcia has not timely filed an answer 16 or otherwise appeared in this action, the entry of Clerk’s default against Rosina Garcia under 17 Rule 55(a) is appropriate and Plaintiff’s motion (ECF No. 27) is granted. 18 B. Motion to Serve Joanna Contreras 19 Plaintiff states that the U.S. Marshal served Joanna Contreras on May 18, 2022, but then 20 the Elko County Sheriff unsuccessfully attempted to serve Contreras. (ECF No. 28.) Plaintiff 21 attaches a document from the Elko County Sheriff’s Office stating that Joanna Contreras was not 22 served. (ECF No. 28 at 12.) Plaintiff seeks an order that the court direct the U.S. Marshal to use 23 1 due diligence to locate and attempt personal service on Joanna Contreras. Plaintiff also asks the 2 court to extend the time to serve Joanna Contreras. 3 Preliminarily, Plaintiff concedes that Joanna Contreras has not been properly served. 4 While the U.S. Marshal filed an executed return for service on Joanna, it indicates that Leann
5 Smith, who is designated to accept service on behalf of the Elko County Sheriff’s Office, was 6 served on May 18, 2022. (ECF No. 15.) Under Federal Rule of Civil Procedure 4(e), an 7 individual may be served by following Nevada law, or by delivering a copy of the summons and 8 complaint to the individual personally, by leaving a copy at the individuals’ dwelling or usual 9 place of abode with a person of suitable age and discretion that lives there, or delivering a copy 10 to an agent authorized by appointment or by law to receive service of process. Fed. R. Civ. P. 11 4(e). 12 The U.S. Marshal did not serve Joanna Contreras with one of the methods authorized 13 under federal law. In Nevada, a current or former employee of a county sued in his or her official 14 or individual capacity for actins or omissions relating to his or her public duties or employment
15 must be served by delivering a copy of the summons and complaint to that employee or with an 16 agent designated by the employee to receive service. Nev. R. Civ. P. 4.2(d)(4). It does not appear 17 that the U.S. Marshal served Joanna Contreras by a method authorized under Nevada law. 18 To the extent Plaintiff requests an order directing the U.S. Marshal to investigate Joanna 19 Contreras’s whereabouts, Plaintiff’s motion is denied. While the court recognizes it may be 20 difficult for a pro se, indigent and incarcerated litigant, it is incumbent upon Plaintiff to provide 21 the necessary information for the U.S. Marshal to complete service. See Puett v. Blandford, 912 22 F.2d 270, 275 (9th Cir. 1990) (an incarcerated pro se plaintiff proceeding in forma pauperis is 23 entitled to rely on the U.S. Marshal for service of the summons and complaint by providing the 1 “necessary information to help effectuate service”); see also Walker v. Sumner, 14 F.3d 1415, 2 1422 (9th Cir. 1994) (indicating that prisoner must furnish the information necessary to identify 3 and serve the defendant to the U.S. Marshal); Downing v. Gentry, No. 2:16-cv-02632-RFB-PAL, 4 2018 WL 5266843 (D. Nev. Oct. 23, 2018) (plaintiff has the responsibility to provide the U.S.
5 Marshal with the information necessary to identify and locate each defendant to be served); 6 Williams v. Clark, No. 2:14-cv-00414-APG-PAL, 2016 WL 1445586 (D. Nev. Mar. 3, 2016) (“If 7 the USM is unable to effectuate service, for example, because plaintiff failed to provide 8 sufficient information or because a defendant is not where plaintiff claims, and plaintiff is 9 informed of the deficiency, he must seek to remedy the situation or face dismissal of that 10 defendant pursuant to Rule 4(m).”). 11 The court will, however, grant Plaintiff’s an extension of 60 days to serve Joanna 12 Contreras. 13 III. CONCLUSION 14 (1) Plaintiff’s motion for entry of Clerk’s default against Rosina Garcia under Federal
15 Rule of Civil Procedure 55(a) (ECF No. 27) is GRANTED. 16 (2) Plaintiff’s motion regarding service on Joanna Contreras (ECF No. 28) is GRANTED 17 IN PART AND DENIED IN PART as follows: 18 Plaintiff’s motion is DENIED with respect to Plaintiff’s request that the court direct the 19 U.S. Marshal to conduct an investigation as to Joanna Contreras’s whereabouts; however, the 20 motion is GRANTED insofar as Plaintiff shall have up to and including August 29, 2022, to 21 complete service on Joanna Contreras. The Clerk shall ISSUE another summons for Joanna 22 Contreras and send the same to the U.S. Marshal along with a copy of the complaint. The Clerk 23 shall SEND Plaintiff a USM-285 form. Plaintiff shall fill out the USM-285 form for Joanna 1}| Contreras and return the form to the U.S. Marshals at 400 South Virginia Street, Room 201, 2|| Reno, Nevada 89501, on or before July 20, 2022. The U.S. Marshal will then attempt service on Joanna Contreras again.
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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Case No.: 3:21-cv-00418-ART-CSD JEREMY R. POWELL, 4 Order Plaintiff 5 Re: ECF Nos. 27, 28 v. 6 CITY OF ELKO, et al., 7 Defendants 8
9 Plaintiff has filed a motion for entry of Clerk’s judgment under Federal Rule of Civil 10 Procedure 55(a) as to defendant Rosina (ECF No. 27), and a motion to have the U.S. Marshal 11 serve defendant Joanna (ECF No. 28). 12 I. BACKGROUND 13 Plaintiff filed this action regarding events that took place during his arrest and subsequent 14 confinement at the Elko County Jail. The court screened Plaintiff’s complaint and allowed him to 15 proceed with the following: (1) excessive force, equal protection and inadequate medical care 16 claims against Ortiz; (2) failure to intervene and inadequate medical care claims against Pepper; 17 (3) a failure to intervene claim against Sgt. Hood; (4) inadequate medical care claims against 18 Rosina, Joanna, and Adkins. (ECF Nos. 5, 9.) The court issued summonses for defendants Ortiz, 19 Pepper, Sgt. Hood, Rosina, Joanna and Adkins. (ECF Nos. 9-1 to 9-6.) 20 The U.S. Marshal returned the summonses as executed for each defendant, indicating that 21 service was effectuated on May 18, 2022. (ECF Nos. 14-19.) An answer has been filed by 22 defendants Adkins and Hood (ECF No. 20) and Ortiz and Pepper (ECF No. 22). 23 1 II. DISCUSSION 2 A. Motion for Entry of Clerk’s Default against Rosina 3 On June 28, 2022, Plaintiff filed a motion seeking entry of Clerks’ default under Rule 4 55(a) against defendant Rosina Garcia. (ECF No. 27.) Plaintiff states that Rosina was served by
5 the U.S. Marshal on May 18, 2022, and on May 24, 2022, Lt. D. Fisher effectuated personal 6 service on Rosina Garcia. Plaintiff argues that Rosina had until June 14, 2022, to file an answer 7 or otherwise appear in this action, but failed to do so. 8 Plaintiff attaches an exhibit that indicates that Rosina Garcia was personally served on 9 May 24, 2022. Therefore, it appears that Rosina Garcia was properly served under Federal Rule 10 of Civil Procedure 4(e)(2)(A). 11 Under Federal Rule of Civil Procedure 12(a)(1)(A)(i), a defendant must file an answer 12 within 21 days of being served. As such, Rosina Garcia had until June 14, 2022, to file an 13 answer. “When a party against whom a judgment for affirmative relief is sought has failed to 14 plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must
15 enter the party’s default.” Fed. R. Civ. P. 55(a). As Rosina Garcia has not timely filed an answer 16 or otherwise appeared in this action, the entry of Clerk’s default against Rosina Garcia under 17 Rule 55(a) is appropriate and Plaintiff’s motion (ECF No. 27) is granted. 18 B. Motion to Serve Joanna Contreras 19 Plaintiff states that the U.S. Marshal served Joanna Contreras on May 18, 2022, but then 20 the Elko County Sheriff unsuccessfully attempted to serve Contreras. (ECF No. 28.) Plaintiff 21 attaches a document from the Elko County Sheriff’s Office stating that Joanna Contreras was not 22 served. (ECF No. 28 at 12.) Plaintiff seeks an order that the court direct the U.S. Marshal to use 23 1 due diligence to locate and attempt personal service on Joanna Contreras. Plaintiff also asks the 2 court to extend the time to serve Joanna Contreras. 3 Preliminarily, Plaintiff concedes that Joanna Contreras has not been properly served. 4 While the U.S. Marshal filed an executed return for service on Joanna, it indicates that Leann
5 Smith, who is designated to accept service on behalf of the Elko County Sheriff’s Office, was 6 served on May 18, 2022. (ECF No. 15.) Under Federal Rule of Civil Procedure 4(e), an 7 individual may be served by following Nevada law, or by delivering a copy of the summons and 8 complaint to the individual personally, by leaving a copy at the individuals’ dwelling or usual 9 place of abode with a person of suitable age and discretion that lives there, or delivering a copy 10 to an agent authorized by appointment or by law to receive service of process. Fed. R. Civ. P. 11 4(e). 12 The U.S. Marshal did not serve Joanna Contreras with one of the methods authorized 13 under federal law. In Nevada, a current or former employee of a county sued in his or her official 14 or individual capacity for actins or omissions relating to his or her public duties or employment
15 must be served by delivering a copy of the summons and complaint to that employee or with an 16 agent designated by the employee to receive service. Nev. R. Civ. P. 4.2(d)(4). It does not appear 17 that the U.S. Marshal served Joanna Contreras by a method authorized under Nevada law. 18 To the extent Plaintiff requests an order directing the U.S. Marshal to investigate Joanna 19 Contreras’s whereabouts, Plaintiff’s motion is denied. While the court recognizes it may be 20 difficult for a pro se, indigent and incarcerated litigant, it is incumbent upon Plaintiff to provide 21 the necessary information for the U.S. Marshal to complete service. See Puett v. Blandford, 912 22 F.2d 270, 275 (9th Cir. 1990) (an incarcerated pro se plaintiff proceeding in forma pauperis is 23 entitled to rely on the U.S. Marshal for service of the summons and complaint by providing the 1 “necessary information to help effectuate service”); see also Walker v. Sumner, 14 F.3d 1415, 2 1422 (9th Cir. 1994) (indicating that prisoner must furnish the information necessary to identify 3 and serve the defendant to the U.S. Marshal); Downing v. Gentry, No. 2:16-cv-02632-RFB-PAL, 4 2018 WL 5266843 (D. Nev. Oct. 23, 2018) (plaintiff has the responsibility to provide the U.S.
5 Marshal with the information necessary to identify and locate each defendant to be served); 6 Williams v. Clark, No. 2:14-cv-00414-APG-PAL, 2016 WL 1445586 (D. Nev. Mar. 3, 2016) (“If 7 the USM is unable to effectuate service, for example, because plaintiff failed to provide 8 sufficient information or because a defendant is not where plaintiff claims, and plaintiff is 9 informed of the deficiency, he must seek to remedy the situation or face dismissal of that 10 defendant pursuant to Rule 4(m).”). 11 The court will, however, grant Plaintiff’s an extension of 60 days to serve Joanna 12 Contreras. 13 III. CONCLUSION 14 (1) Plaintiff’s motion for entry of Clerk’s default against Rosina Garcia under Federal
15 Rule of Civil Procedure 55(a) (ECF No. 27) is GRANTED. 16 (2) Plaintiff’s motion regarding service on Joanna Contreras (ECF No. 28) is GRANTED 17 IN PART AND DENIED IN PART as follows: 18 Plaintiff’s motion is DENIED with respect to Plaintiff’s request that the court direct the 19 U.S. Marshal to conduct an investigation as to Joanna Contreras’s whereabouts; however, the 20 motion is GRANTED insofar as Plaintiff shall have up to and including August 29, 2022, to 21 complete service on Joanna Contreras. The Clerk shall ISSUE another summons for Joanna 22 Contreras and send the same to the U.S. Marshal along with a copy of the complaint. The Clerk 23 shall SEND Plaintiff a USM-285 form. Plaintiff shall fill out the USM-285 form for Joanna 1}| Contreras and return the form to the U.S. Marshals at 400 South Virginia Street, Room 201, 2|| Reno, Nevada 89501, on or before July 20, 2022. The U.S. Marshal will then attempt service on Joanna Contreras again. 4 There will be no further extensions of the deadline to complete service on Joanna Contreras absent a showing of good cause or excusable neglect under Rule 4. If Plaintiff fails to 6] timely serve Joanna Contreras, she may be dismissed under Federal Rule of Civil Procedure 4(m). IT IS SO ORDERED. Dated: June 29, 2022 CS oy Craig S. Denney 11 United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23