Beverly v. Officer Mendoza ( 2023 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 TYREE BEVERLY, Case No. 2:23-cv-00722-RFB-BNW 5 Plaintiff, ORDER 6 v. 7 OFFICER MENDOZA, et al., 8 Defendants. 9 10 On October 16, 2023, Plaintiff Tyree Beverly (“Plaintiff”), an inmate at Pioche 11 Conservation Camp, filed a Complaint against several METRTO officers. ECF No. 1. Plaintiff is 12 proceeding pro se and in forma pauperis. ECF Nos 1, 5. 13 The Court screened Plaintiff’s amended complaint and allowed and allowed an excessive 14 force claim to proceed under the Fourteenth Amendment against Defendants Mendoza, Felix, 15 Jimenez, Abbleman and Durpe in their individual capacities. ECF No. 5. 16 The Court ordered that service of the summonses and the amended complaint upon 17 Defendants be effected by the United States Marshal (“USM”). ECF No. 5. 18 On November 10, 2023, a completed USM-285 Process Receipt and Return was filed, 19 which indicates that the USM attempted to serve these Defendants but was advised “Unable to 20 serve without a P #.” ECF No. 9. 21 This Court has an obligation to construe, administer and employ the Federal Rules of Civil 22 Procedure in a manner “to secure the just, speedy, and inexpensive determination of every 23 action.” Fed. R. Civ. P. 1 (“Rule 1”). Although the initial disclosure requirements of Rule 24 26(a)(1)(A) do not apply in cases brought by persons in the custody of a state who is without 25 counsel (Fed. R. Civ. P. 26(a)(1)(B)(iv)), the Supreme Court has held, in a pro per prisoner civil 26 rights case, that trial courts have “broad discretion” under Rule 26 to manage discovery “to 27 facilitate [the] prompt and efficient resolution of the lawsuit.” Crawford-El v. Britton, 523 U.S. 1 Although an incarcerated IFP pro se plaintiff is entitled to rely on the USM to effect 2 service of process, it is ultimately a plaintiff's responsibility to provide the USM “sufficient 3 identifying information, including a full name and a current address for the unserved defendants, 4 so they can be served.” Thomas v. Ellis, 2014 WL 116286, at *6 (N.D. Cal. Jan. 13, 2014). At the 5 same time, this Court has an “obligation to assist a pro se incarcerated litigant to obtain discovery 6 ... so that service can be effected.” Carpio v. Luther, 2009 WL 605300, at *1 (W.D. N.Y. Mar. 9, 7 2009) (citing Valentin v. Dinkins, 121 F.3d 72, 75 (2d Cir. 1997)); see also Billman v. Indiana 8 Dep't of Corrections, 56 F.3d 785, 790 (7th Cir. 1995) (“[B]ecause plaintiff] is a prisoner he may 9 not be in a position to identify the proper defendants, or all of them in his complaint.... We think 10 it is the duty of the district court to assist [the incarcerated pro se litigant], within reason, to make 11 the necessary investigation.”). 12 METRO has advised that additional information is required in order to effectuate service. 13 Plaintiff has a right to discovery regarding the full names and “P numbers” of the Defendants. 14 Immediate limited discovery directed to Defendants regarding the full name and “P numbers” 15 appears to be warranted. The Court will provide Defendants an opportunity to be heard upon the 16 propriety of such an order. 17 Therefore, by no later than January 5, 2024, METRO shall file and serve upon Plaintiff 18 either an Objection or a Statement of Non-Opposition to the issuance of an Order directing 19 METRO to (1) determine which officers by the last names of Mendoza, Felix, Jimenez, 20 Abbleman and Durpe may have been on duty on October 28, 2022. responding to a situation 21 roughly corresponding to that described Plaintiff’s amended complaint and (2) file a notice 22 advising the Court and Plaintiff, by no later than February 5, 2024, as to: (a) what METRO was 23 able to determine, (b) to the extent METRO was able to determine which officers are the named 24 defendants, the names of the Defendants for whom it accepts service and the names of the 25 defendants for whom it does not accept service, and (c) for the Defendants for whom it does not 26 accept service, whether it is willing to file their last known address under seal with the Court so 27 that the USM can attempt service on those Defendants. 1 |} ITIS SO ORDERED. 2 || IT IS FURTHER ORDERED that the USM serve this Order on METRO Assistant General 3 || Counsel Ruth Miller. 4 DATED: December 5, 2023. 5 ro Lea WORN BRENDA WEKSLER 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28