Williams v. United States Marshals

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BILLY PAUL WILLIAMS, Case No. 22-cv-0139-BAS-BLM 12 #61027298, 13 Plaintiff, ORDER DIRECTING U.S. MARSHAL TO EFFECT SERVICE 14 vs. OF THIRD AMENDED 15 OFFICER COTTS, U.S. Marshal; JOHN COMPLAINT UPON DEFENDANT COTTS 16 DOE, U.S. Marshal, 17 Defendants. 18 19 On January 31, 2022, Plaintiff Billy Paul Williams, a federal inmate proceeding pro 20 se and in forma pauperis, initiated this civil action pursuant to Bivens v. Six Unknown 21 Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). (See Compl. at 1, 22 ECF No. 1.) The Court screened and dismissed sua sponte his original Complaint and First 23 Amended Complaint under 28 U.S.C. § 1915(e)(2) and § 1915A(b). (ECF Nos. 4, 10.) 24 Plaintiff then filed a Second Amended Complaint (“SAC”), alleging two unnamed deputy 25 U.S. Marshals, Doe #1 and Doe #2, used excessive force in shackling him too tightly, 26 despite his warning that he had “metal screws” in his ankles. (See SAC at 3, ECF No. 11.) 27 On November 29, 2022, this Court screened the SAC and concluded Plaintiff stated 28 1 a plausible excessive force claim against Marshal Doe #1 and Marshal Doe #2, sufficient 2 to survive the “low threshold” for proceeding past the sua sponte screening required under 3 28 U.S.C. § 1915(e)(2) and § 1915A(b). (See ECF No. 12 at 6.) The Court, however, did 4 not order the U.S. Marshal Service (“USMS”) to serve the SAC at that time because 5 Plaintiff had not provided enough information for the USMS to identify the defendants and 6 effect service. The Court gave Plaintiff 90 days to identify the Doe Defendants and file a 7 “motion to amend his SAC to substitute Defendants Marshal Doe #1 and Marshal Doe #2, 8 with either their names or, if full names cannot be obtained, enough identifying information 9 about Marshal Doe #1 and/or Marshal Doe #2 to allow the USMS to execute service of 10 process on them.” (Id. at 7.) 11 On January 26, 2023, Plaintiff filed a Third Amended Complaint (“TAC”), which 12 alleges the same facts and grounds for relief as his SAC. (See ECF No. 13.) The TAC also 13 identifies Doe Defendant #1 as U.S. Marshal “Officer Cotts.” (Id. at 1, 2.) Although 14 Plaintiff has yet to identify Marshal Doe #2, his naming of Cotts is sufficient for the case 15 to proceed to service of the TAC for the same reasons discussed in this Court’s November 16 26, 2022 Screening Order.2 (See ECF No. 12 at 6.) 17 Accordingly, the Court: 18 1. DIRECTS the Clerk of the Court to issue a summons as to Plaintiff’s Third 19 Amended Complaint (ECF No. 13) upon Defendant Cotts of the U.S. Marshal Service and 20 to forward it to Plaintiff along with a blank U.S. Marshal Form 285.3 In addition, the Clerk 21 will provide Plaintiff with certified copies of this Order, his Third Amended Complaint, 22 23 1 The Court “assumed the existence of a Bivens remedy for purposes of screening.” (ECF No. 12 at 4.) 24 2 If Plaintiff is later able to identify the remaining Doe Defendant, he may seek permission to amend his TAC accordingly. 25 3 Because Plaintiff is suing an officer or employee of the United States in his individual capacity, he must also serve the United States. See Fed. R. Civ. P. 4(i)(3). Therefore, the Clerk will include in Plaintiff’s IFP 26 package two separate copies of this Order, summons, Plaintiff’s Third Amended Complaint, and 27 additional blank U.S. Marshal Form 285s for Plaintiff’s use in serving the United States via the United States Attorney for the Southern District of California, and the Attorney General of the United States in 28 Washington, D.C. See Fed. R. Civ. P. 4(i)(1)(A)(i), (B). 1 |}and the summons so that he may serve Defendant Cotts. Upon receipt of this “IFP 2 || Package,” Plaintiff is directed to complete the Form 285s as completely and accurately as 3 || possible, include an address where service upon Cotts is to be made, see S.D. Cal. CivLR 4 ||4.1(c), and return them to the United States Marshal according to the instructions provided 5 || by the Clerk in the letter accompanying his IFP Package. 6 2. ORDERS the USMS to serve a copy of the Third Amended Complaint and 7 ||summons upon Defendant Cotts as directed by Plaintiff on the U.S. Marshal Form 285 and 8 ||to promptly file proof of that service, or proof of any attempt at service, with the Clerk of 9 || Court. See S.D. Cal. CivLR 5.2. All costs of service will be advanced by the United States. 10 || See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). 11 3. ORDERS Defendant Cotts, once served, to reply to Plaintiff's Third 12 || Amended Complaint within the time provided by the applicable provisions of Federal Rule 13 Civil Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (‘The Court may require any 14 || defendant to reply to a complaint brought under this section if it finds that the plaintiff has 15 reasonable opportunity to prevail on the merits.”). 16 4. ORDERS Plaintiff to serve upon Defendant Cotts or, if appearance has been 17 || entered by counsel, upon Defendant’s counsel, a copy of every further pleading or other 18 |}document submitted for consideration of the Court. Plaintiff must also include with the 19 || original filing with the Clerk of the Court a certificate stating the manner in which a true 20 || and correct copy of the filing was also served on Defendant, or counsel for Defendant, and 21 ||the date of such service. Any paper received by the Court that has not been filed with the 22 Clerk or that fails to include a Certificate of Service may be disregarded. 23 IT IS SO ORDERED. 24 25 || DATED: March 15, 2023 ( ill A (Hyshan 6 26 United States District Judge 27 28