(PC) Felix v. Clendenin ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SCOTT EMERSON FELIX, Case No. 1:19-cv-01784-AWI-BAM (PC) 12 Plaintiff, ORDER DIRECTING PLAINTIFF TO INITIATE AND COMPLETE SERVICE OF 13 v. PROCESS ON NAMED DEFENDANTS 14 CLENDENIN, et al., NINETY (90) DAY DEADLINE 15 Defendants. ORDER DIRECTING CLERK OF COURT TO ISSUE SUMMONSES 16 ORDER REQUIRING PLAINTIFF TO FILE 17 MOTION TO AMEND TO SUBSTITUTE NAMES OF DOE DEFENDANTS 18 NINETY (90) DAY DEADLINE 19 20 21 Plaintiff Scott Emerson Felix (“Plaintiff”) is a civil detainee proceeding pro se in this civil 22 rights action pursuant to 42 U.S.C. § 1983. Individuals detained pursuant to California Welfare 23 and Institutions Code § 6600 et seq. are civil detainees and are not prisoners within the meaning 24 of the Prison Litigation Reform Act. Page v. Torrey, 201 F.3d 1136, 1140 (9th Cir. 2000). 25 The Court is required to screen complaints brought by prisoners seeking relief against a 26 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 27 §1915A(a); 42 U.S.C. § 1997e(c). The Court is also authorized to screen complaints brought by 28 plaintiffs proceeding in forma pauperis. 28 U.S.C. § 1915(e). 1 As noted above, Plaintiff is a civil detainee, and is not considered a prisoner within the 2 meaning of the Prison Litigation Reform Act. Page, 201 F.3d at 1140. In addition, Plaintiff has 3 recently paid the filing fee in this action, and is therefore not proceeding in forma pauperis. (ECF 4 Nos. 10, 12.) Accordingly, this action proceeds to service without screening by the Court. 5 As Plaintiff is not proceeding in forma pauperis, he is responsible for serving Defendants 6 in accordance with Rule 4 of the Federal Rules of Civil Procedure. Included with this order are 7 the appropriate service forms and a copy of Rule 4. Unless good cause for an extension of time is 8 shown, Plaintiff must complete service of process and file proof thereof with the Court within 9 ninety (90) days. Fed. R. Civ. P. 4(m). The following two sections contain instructions on how 10 to serve Defendants. 11 I. Instructions on Completing Service of Process 12 A. Waiver of Service 13 Plaintiff has the option of notifying Defendants of the commencement of this action and 14 requesting that they waive service of the summons. Fed. R. Civ. P. 4(d)(1). If Plaintiff wishes to 15 do this, he must mail each Defendant (1) the form entitled “Notice of Lawsuit and Request to 16 Waive Service for Summons,” (2) two copies of the form entitled “Waiver of Service of 17 Summons,” (3) a copy of the complaint; (4) a copy of this order; and (5) a stamped, self- 18 addressed envelope for returning one copy of the signed waiver form to Plaintiff. The documents 19 must be addressed directly to each Defendant (not the Attorney General’s Office or any other 20 governmental entity), and the documents must be sent by first-class mail or other reliable means. 21 Id. The Waiver of Service of Summons form must set forth the date on which the request is sent 22 and must allow each Defendant at least thirty (30) days to return the waiver to Plaintiff. If 23 Defendants sign and return the waiver forms to Plaintiff, Plaintiff must then file the forms with 24 the Court. After filing the forms with the Court, Plaintiff does not need to do anything further to 25 serve Defendants. Fed. R. Civ. P. 4(d)(4). 26 B. Personal Service 27 If either (1) Plaintiff does not wish to request Defendants to waive service or (2) one or 28 more of the Defendants fail to return the Waiver of Service of Summons form to Plaintiff, 1 Plaintiff must have personal service effected on Defendants. In either situation, the summons, a 2 copy of the complaint, and a copy of this order must be personally served on each Defendant (not 3 the Attorney General’s Office or any other governmental entity). Plaintiff may not effect personal 4 service himself. Fed. R. Civ. P. 4(c)(2). Service may be effected by any person who is not a party 5 to this action and who is at least eighteen years old. Id. The Court will provide Plaintiff with a 6 copy of Rule 4 along with this order. Plaintiff should review Rule 4(e), which addresses how 7 personal service is effected. After personal service is effected on Defendants, Plaintiff must file 8 proof of service with the Court. Fed. R. Civ. P. 4(l). 9 II. Doe Defendants 10 At this time, the Court does not find service appropriate for Defendants John and Jane 11 Does 1–25 employed at California Department of State Hospitals or Defendants John and Jane 12 Does 1–25 employed at California Department of State Hospitals – Coalinga. Plaintiff will be 13 required to identify these defendants with enough information to locate them for service of 14 process. Once Plaintiff identifies the Doe Defendants, Plaintiff must file a motion to amend, 15 including a proposed amended complaint substituting the true names of the Doe Defendants. The 16 Court will then order the Clerk of the Court to issue summonses for those Defendants so Plaintiff 17 can complete service of process on the identified defendants. However, if Plaintiff fails to 18 identify any of the Doe Defendants during the course of this action, the unidentified defendants 19 will be dismissed from this action. 20 III. Order 21 Accordingly, it is HEREBY ORDERED as follows: 22 1. This action shall proceed on Plaintiff’s complaint, filed on December 23, 2019, (ECF No. 23 1), against the following named defendants: 24 a. The California Department of State Hospitals; 25 b. The Department of State Hospitals – Coalinga; 26 c. Stephanie Clendenin, Acting Director of the Department of State Hospitals (DSH); 27 d. Brandon Price, Executive Director of Department of State Hospitals – Coalinga; 28 e. Francis Hicks, Hospital Administrator of Department of State Hospitals – 1 Coalinga; and 2 f. Mathew Zelt, Director of Central Program Services of Department of State 3 Hospitals – Coalinga; 4 2. The Clerk of the Court is directed to issue and send Plaintiff six (6) summonses, and one 5 copy of each of the following documents: 6 a. Complaint filed December 23, 2019 (ECF No. 1); 7 b. “Notice of Lawsuit and Request to Waive Service for Summons” form; 8 c. “Waiver of Service” form; and 9 d. Rule 4 of the Federal Rules of Civil Procedure; 10 3. Plaintiff shall complete service of process on these defendants within ninety (90) days 11 from the date of service of this order; 12 4. Within ninety (90) days from the date of service of this order, Plaintiff shall file a motion 13 to amend with a proposed complaint that identifies the true names of the Doe Defendants 14 with enough information to locate them for service of process; 15 5. Unless good cause is shown, Plaintiff’s failure to timely complete service of process 16 on Defendants and to file proof thereof with the Court will result in dismissal of any 17 unserved defendants. Fed. R. Civ. P. 4(m); and 18 6. Plaintiff’s failure to file an amended complaint identifying the Doe Defendants will 19 result in dismissal of any unidentified Doe Defendants from this action. 20 IT IS SO ORDERED. 21 22 Dated: July 23, 2020 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28