1 2 3 4 5 6 7 10 11 TEDDY LeROY WILSON, Jr., Case No.: 23-CV-270 TWR (DDL) CDCR #BC5903, 12 ORDER (1) DIRECTING THE Plaintiff, 13 CLERK OF COURT TO ADD vs. DEFENDANTS TO THE DOCKET; 14 (2) DIRECTING U.S. MARSHAL TO Sgt. JEFFREY BRANDT, Oceanside 15 EFFECT SERVICE OF COMPLAINT Police; DANIAL POST, Oceanside Police AND SUMMONS UPON 16 Officer; AARON WEIRICH, Oceanside DEFENDANTS BRANDT, POST, Police Officer; MICHELLE ALARCON, 17 WEIRICH, ALARCON, LASER, Oceanside Police Officer; NATALIE LUNDY, WALKER, AND NELSON 18 LASER, Oceanside Police Officer; PURSUANT TO 28 U.S.C. § 1915(d) DUSTIN LUNDY, Oceanside Police 19 AND FED. R. CIV. P. 4(c)(3) Officer; B. WALKER; Oceanside Police
20 Officer; T. NELSON, County Probation; (ECF No. 6) UNKNOWN Tri City Hospital Staff; 21 UNKNOWN Oceanside Fire Department 22 Staff; UNKNOWN Oceanside Trainers and Supervisors, 23
24 Defendants. 25 On February 7, 2023, Plaintiff Teddy LeRoy Wilson Jr., who is a prisoner 26 proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 against 27 “Unknown Oceanside Police Officers etc.[,] Unknown Tri City Hospital Staff etc.[,] 28 Unknown Oceanside Fire Department Staff etc.[, and] Unknown Trainers and Supervisors 1 etc.,” (see ECF No. 1 (“Compl.”)), and two motions to proceed in forma pauperis (“IFP”). 2 (See ECF Nos. 2–3.) On April 24, 2023, the Court granted Plaintiff IFP status and screened 3 his Complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), concluding that he 4 had stated an excessive force claim against the Doe Defendants but finding that service 5 was not appropriate at that time because the U.S. Marshals Service (“USMS”) cannot serve 6 an “unknown” defendant. (See ECF No. 5 at 6–7.) The Court therefore gave Plaintiff 7 ninety days to identify the Doe Defendants. (See id. at 8); see also Gillespie v. Civiletti, 8 629 F.2d 637, 642 (9th Cir. 1980) (“As a general rule, the use of ‘John Doe’ to identify a 9 defendant is not favored. . . . However, . . . where the identity of alleged defendants will 10 not be known prior to the filing of a complaint[,] . . . the plaintiff should be given an 11 opportunity . . . to identify the unknown defendants, unless it is clear that discovery would 12 not uncover the identities[.]”). 13 Plaintiff has now filed a document identifying seven Defendants with the Oceanside 14 Police and one Defendant with County Probation and asking to add those individuals as 15 Defendants in his case. (See ECF No. 6.) Plaintiff also advises that he is currently seeking 16 the identities of the Unknown Tri City Hospital Staff, Unknown Oceanside Fire 17 Department Staff, and Unknown Oceanside Trainers and Supervisors. (See id.) 18 Accordingly, the Court: 19 1. DIRECTS the Clerk of Court to add to the docket as Defendants: Sgt. 20 JEFFREY BRANDT, Oceanside Police; DANIAL POST, Oceanside Police Officer; 21 AARON WEIRICH, Oceanside Police Officer; MICHELLE ALARCON, Oceanside 22 Police Officer; NATALIE LASER, Oceanside Police Officer; DUSTIN LUNDY, 23 Oceanside Police Officer; B. WALKER; Oceanside Police Officer; T. NELSON, County 24 Probation; 25 2. DIRECTS the Clerk of Court to issue summonses as to Plaintiff’s Complaint 26 (ECF No. 1) upon Defendants BRANDT, POST, WEIRICH, ALARCON, LASER, 27 LUNDY, WALKER, and NELSON, and forward them to Plaintiff along with blank USM- 28 285s. The Clerk also shall provide Plaintiff with certified copies of this Order, certified 1 copies of his Complaint, and the summonses so that he may serve BRANDT, POST, 2 WEIRICH, ALARCON, LASER, LUNDY, WALKER, and NELSON. Upon receipt of 3 this “IFP Package,” Plaintiff must (a) complete the USM-285s as completely and 4 accurately as possible; (b) include an address where BRANDT, POST, WEIRICH, 5 ALARCON, LASER, LUNDY, WALKER, and NELSON may be found and/or subject to 6 service pursuant to Civil Local Rule 4.1c.; and (c) return them to the USMS according to 7 the instructions the Clerk provides. 8 3. ORDERS the USMS to serve a copy of Plaintiff’s Complaint (ECF No. 1) 9 and summons upon Defendants BRANDT, POST, WEIRICH, ALARCON, LASER, 10 LUNDY, WALKER, and NELSON at the addresses provided by Plaintiff on the USM- 11 285s provided and file executed waivers of personal service upon BRANDT, POST, 12 WEIRICH, ALARCON, LASER, LUNDY, WALKER, and NELSON with the Clerk of 13 Court as soon as possible after their return. Should Defendants BRANDT, POST, 14 WEIRICH, ALARCON, LASER, LUNDY, WALKER, and NELSON fail to return the 15 USMS’s request for waiver of personal service within ninety (90) days, the USMS must 16 instead file the completed USM-285s Process Receipt and Return with the Clerk of Court; 17 include the date the summons, Complaint, and request for waiver was mailed to BRANDT, 18 POST, WEIRICH, ALARCON, LASER, LUNDY, WALKER, and NELSON; and indicate 19 why service remains unexecuted. All costs of service will be advanced by the United 20 States; however, if BRANDT, POST, WEIRICH, ALARCON, LASER, LUNDY, 21 WALKER, and NELSON are located within the United States and fail without good cause 22 to sign and return the waiver requested by the USMS on Plaintiff’s behalf, the Court will 23 impose upon BRANDT, POST, WEIRICH, ALARCON, LASER, LUNDY, WALKER, 24 and NELSON any expenses later incurred in making personal service. See 28 U.S.C. 25 § 1915(d); Fed. R. Civ. P. 4(c)(3). 26 4. ORDERS Defendants BRANDT, POST, WEIRICH, ALARCON, LASER, 27 LUNDY, WALKER, and NELSON, once served, to reply to Plaintiff’s Complaint within 28 the time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). 1 || See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to “waive 2 || the right to reply to any action brought by a prisoner confined in any jail, prison, or other 3 correctional facility under section 1983,” once the court has conducted its sua sponte 4 ||screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b) and therefore has made a 5 || preliminary determination based on the face on the pleading alone that the plaintiff has a 6 || “reasonable opportunity to prevail on the merits,” the defendant is required to respond). 7 5. ORDERS Plaintiff, after service has been effected by the USMS, to serve 8 |fupon Defendants BRANDT, POST, WEIRICH, ALARCON, LASER, LUNDY, 9 || WALKER, and NELSON or, if an appearance has been entered by counsel, upon counsel 10 ||for BRANDT, POST, WEIRICH, ALARCON, LASER, LUNDY, WALKER, and 11 || NELSON a copy of every further pleading, motion, or other document submitted for the 12 Court’s consideration pursuant to Federal Rule of Civil Procedure 5(b).
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1 2 3 4 5 6 7 10 11 TEDDY LeROY WILSON, Jr., Case No.: 23-CV-270 TWR (DDL) CDCR #BC5903, 12 ORDER (1) DIRECTING THE Plaintiff, 13 CLERK OF COURT TO ADD vs. DEFENDANTS TO THE DOCKET; 14 (2) DIRECTING U.S. MARSHAL TO Sgt. JEFFREY BRANDT, Oceanside 15 EFFECT SERVICE OF COMPLAINT Police; DANIAL POST, Oceanside Police AND SUMMONS UPON 16 Officer; AARON WEIRICH, Oceanside DEFENDANTS BRANDT, POST, Police Officer; MICHELLE ALARCON, 17 WEIRICH, ALARCON, LASER, Oceanside Police Officer; NATALIE LUNDY, WALKER, AND NELSON 18 LASER, Oceanside Police Officer; PURSUANT TO 28 U.S.C. § 1915(d) DUSTIN LUNDY, Oceanside Police 19 AND FED. R. CIV. P. 4(c)(3) Officer; B. WALKER; Oceanside Police
20 Officer; T. NELSON, County Probation; (ECF No. 6) UNKNOWN Tri City Hospital Staff; 21 UNKNOWN Oceanside Fire Department 22 Staff; UNKNOWN Oceanside Trainers and Supervisors, 23
24 Defendants. 25 On February 7, 2023, Plaintiff Teddy LeRoy Wilson Jr., who is a prisoner 26 proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 against 27 “Unknown Oceanside Police Officers etc.[,] Unknown Tri City Hospital Staff etc.[,] 28 Unknown Oceanside Fire Department Staff etc.[, and] Unknown Trainers and Supervisors 1 etc.,” (see ECF No. 1 (“Compl.”)), and two motions to proceed in forma pauperis (“IFP”). 2 (See ECF Nos. 2–3.) On April 24, 2023, the Court granted Plaintiff IFP status and screened 3 his Complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), concluding that he 4 had stated an excessive force claim against the Doe Defendants but finding that service 5 was not appropriate at that time because the U.S. Marshals Service (“USMS”) cannot serve 6 an “unknown” defendant. (See ECF No. 5 at 6–7.) The Court therefore gave Plaintiff 7 ninety days to identify the Doe Defendants. (See id. at 8); see also Gillespie v. Civiletti, 8 629 F.2d 637, 642 (9th Cir. 1980) (“As a general rule, the use of ‘John Doe’ to identify a 9 defendant is not favored. . . . However, . . . where the identity of alleged defendants will 10 not be known prior to the filing of a complaint[,] . . . the plaintiff should be given an 11 opportunity . . . to identify the unknown defendants, unless it is clear that discovery would 12 not uncover the identities[.]”). 13 Plaintiff has now filed a document identifying seven Defendants with the Oceanside 14 Police and one Defendant with County Probation and asking to add those individuals as 15 Defendants in his case. (See ECF No. 6.) Plaintiff also advises that he is currently seeking 16 the identities of the Unknown Tri City Hospital Staff, Unknown Oceanside Fire 17 Department Staff, and Unknown Oceanside Trainers and Supervisors. (See id.) 18 Accordingly, the Court: 19 1. DIRECTS the Clerk of Court to add to the docket as Defendants: Sgt. 20 JEFFREY BRANDT, Oceanside Police; DANIAL POST, Oceanside Police Officer; 21 AARON WEIRICH, Oceanside Police Officer; MICHELLE ALARCON, Oceanside 22 Police Officer; NATALIE LASER, Oceanside Police Officer; DUSTIN LUNDY, 23 Oceanside Police Officer; B. WALKER; Oceanside Police Officer; T. NELSON, County 24 Probation; 25 2. DIRECTS the Clerk of Court to issue summonses as to Plaintiff’s Complaint 26 (ECF No. 1) upon Defendants BRANDT, POST, WEIRICH, ALARCON, LASER, 27 LUNDY, WALKER, and NELSON, and forward them to Plaintiff along with blank USM- 28 285s. The Clerk also shall provide Plaintiff with certified copies of this Order, certified 1 copies of his Complaint, and the summonses so that he may serve BRANDT, POST, 2 WEIRICH, ALARCON, LASER, LUNDY, WALKER, and NELSON. Upon receipt of 3 this “IFP Package,” Plaintiff must (a) complete the USM-285s as completely and 4 accurately as possible; (b) include an address where BRANDT, POST, WEIRICH, 5 ALARCON, LASER, LUNDY, WALKER, and NELSON may be found and/or subject to 6 service pursuant to Civil Local Rule 4.1c.; and (c) return them to the USMS according to 7 the instructions the Clerk provides. 8 3. ORDERS the USMS to serve a copy of Plaintiff’s Complaint (ECF No. 1) 9 and summons upon Defendants BRANDT, POST, WEIRICH, ALARCON, LASER, 10 LUNDY, WALKER, and NELSON at the addresses provided by Plaintiff on the USM- 11 285s provided and file executed waivers of personal service upon BRANDT, POST, 12 WEIRICH, ALARCON, LASER, LUNDY, WALKER, and NELSON with the Clerk of 13 Court as soon as possible after their return. Should Defendants BRANDT, POST, 14 WEIRICH, ALARCON, LASER, LUNDY, WALKER, and NELSON fail to return the 15 USMS’s request for waiver of personal service within ninety (90) days, the USMS must 16 instead file the completed USM-285s Process Receipt and Return with the Clerk of Court; 17 include the date the summons, Complaint, and request for waiver was mailed to BRANDT, 18 POST, WEIRICH, ALARCON, LASER, LUNDY, WALKER, and NELSON; and indicate 19 why service remains unexecuted. All costs of service will be advanced by the United 20 States; however, if BRANDT, POST, WEIRICH, ALARCON, LASER, LUNDY, 21 WALKER, and NELSON are located within the United States and fail without good cause 22 to sign and return the waiver requested by the USMS on Plaintiff’s behalf, the Court will 23 impose upon BRANDT, POST, WEIRICH, ALARCON, LASER, LUNDY, WALKER, 24 and NELSON any expenses later incurred in making personal service. See 28 U.S.C. 25 § 1915(d); Fed. R. Civ. P. 4(c)(3). 26 4. ORDERS Defendants BRANDT, POST, WEIRICH, ALARCON, LASER, 27 LUNDY, WALKER, and NELSON, once served, to reply to Plaintiff’s Complaint within 28 the time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). 1 || See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to “waive 2 || the right to reply to any action brought by a prisoner confined in any jail, prison, or other 3 correctional facility under section 1983,” once the court has conducted its sua sponte 4 ||screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b) and therefore has made a 5 || preliminary determination based on the face on the pleading alone that the plaintiff has a 6 || “reasonable opportunity to prevail on the merits,” the defendant is required to respond). 7 5. ORDERS Plaintiff, after service has been effected by the USMS, to serve 8 |fupon Defendants BRANDT, POST, WEIRICH, ALARCON, LASER, LUNDY, 9 || WALKER, and NELSON or, if an appearance has been entered by counsel, upon counsel 10 ||for BRANDT, POST, WEIRICH, ALARCON, LASER, LUNDY, WALKER, and 11 || NELSON a copy of every further pleading, motion, or other document submitted for the 12 Court’s consideration pursuant to Federal Rule of Civil Procedure 5(b). Plaintiff must 13 |/include with every original document he seeks to file with the Clerk of Court a certificate 14 stating the manner in which a true and correct copy of that document was served on 15 |} BRANDT, POST, WEIRICH, ALARCON, LASER, LUNDY, WALKER, and NELSON 16 |/or their counsel and the date of that service. See S.D. Cal. CivLR 5.2. Any document 17 ||received by the Court that has not been properly filed with the Clerk or which fails to 18 |/include a certificate of service upon BRANDT, POST, WEIRICH, ALARCON, LASER, 19 || LUNDY, WALKER, and NELSON or their counsel may be disregarded. 21 Dated: May 24, 2023 —_—_ 22 | 99> (2 re 3 Honorable Todd W. Robinson United States District Court 24 25 26 27 28 4