Kеnneth McDonald, Plaintiff, v. City of Phoenix, et al., Defendants.
No. CV-23-01275-PHX-DWL (DMF)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA
November 21, 2023
Dominic W. Lanza, United States District Judge
Plaintiff Kenneth McDonald, who is not in custody, has filed a pro se complaint pursuant to
The Court will grant the Motion to Exceed Page limit and direct the Clerk of Court to file the Motion to Dismiss; grant in part and deny in part the Motion to Dismiss; order Defendants Sleeper, Alvarado, Blalock, Swartz, Gomez, Mereno, Turiano, and the City of Phoenix to answer Counts Three, Six, Seven, Eight, Nine, Eleven, Twelve, and Thirteen, as set forth herein; and dismiss the remaining claims and Defendants without prejudice.
I. Application to Proceed
Plaintiff‘s Application to Proceed indicates he lacks funds to pay for this action.
II. Statutory Screening of In Forma Pauperis Actions
Pursuant to
shall dismiss the case at any time if the court determines that (A) the allegation of poverty is untrue; or (B) the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.
A pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.”
“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a clаim to relief that is plausible on its face.‘” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff‘s specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other “more likely explanations” for a defendant‘s conduct. Id. at 681.
But as the United States Court of Appeals for the Ninth Circuit has instructed, courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent
III. Complaint
In his 15-count Complaint, Plaintiff names as Defendants: the City of Phoenix; interim Phoenix Police Chief Michael Sullivаn; and “City of Phoenix Employees” Jarret Sleeper, Brian Alvarado, Chris Turiano, JD Curtis Merena, Tristan A. Blalock, Eric S. Gomez, Michael Hiatt, Matthew Swartz, Jason Winfield, Zabatka Colbert, David Seitter Ii, Brian Freudenthal, Brian Herricht, and Robert Warren.2 Sullivan is named in both his individual and official capacities, while the remaining Defendants are named in their individual capacities only. Plaintiff seeks monetary relief, punitive damages, and injunctive relief in the form that the individually named Defendants be fired and criminally charged.3
Plaintiff‘s claims arise from a common core of allegations, as follows: On August 2, 2022, Plaintiff “knocked on the passenger side window of a police vehicle to speak with the officer inside.” Defendant Sleeper exited the vehicle and “[a] dialogue began,” during which Plaintiff called Sleeper a “dumbass.” At that point, Plaintiff “was suddenly physically apprеhended, placed in custodial restraints (handcuffs), and closed into the backseat of the police vehicle without warning or explanation.” Sleeper then called for a mobile fingerprinting device, and multiple other officers responded. Defendant Turiano opened the door of the police vehicle and told Plaintiff to exit so that fingerprints could be obtained. Plaintiff stated that he would refuse to give his fingerprints, and voluntarily exited the vehicle with his hands closed. Although Plaintiff was still handcuffed, Defendants Turiano, Sleeper, and Alvarado “grabbed Plaintiff and took him to the ground.”
Plaintiff was then placed back in the police vehicle without his fingerprints having been taken. Several minutes later, Defendant Turiano “pulled [Plaintiff] out of the police vehicle again, ostensibly stating he would remove Plaintiff to loosen handcuffs,” but instead “again attempted to obtain fingerprints.” “[D]ue to intense fear of further injuries,” Plaintiff did not resist. After Plaintiff‘s fingerprints were obtained, Turiano “grabbed Plaintiff‘s hand, still in restraints, and forced it up and back with the intention to cause further injury.”
The officers then “conspire[ed] to fabricate charges and further cover up the crimes they intentionally committed,” by turning body cams off and on, cаlling the fire department to “clean” Plaintiff before pictures were taken, and “altering the description of Plaintiff to fit the description of another unrelated suspect who was wanted for an incident involving a firearm.” The officers’ reports were then “reviewed and moved forward for approval” to Defendants Colbert, Winfield, Herricht, Seitter Ii, Freudenthal, and Warren,” all of whom “failed to report, after review of the body cam footage, that the arrest was made with no probable cause, and that excessive force was used to obtain fingerprints.”
Plaintiff was charged with trespassing, obstructing government operations, aggravated assault, and resisting arrest. All of Plaintiff‘s charges were subsequently dismissed. However, as a result of the charges, Plaintiff‘s arrest “show[s] up on background checks,” and Plaintiff “lost his job with Uber Eats and has not been аble to find work since the incident.”
Accordingly, Plaintiff asserts the following claims for relief:
- Count One: Unlawful Imprisonment pursuant to
Arizona Revised Statutes § 13-1303 , brought against the City of Phoenix, Sullivan, and Sleeper; Count Two: Aggravated Assault pursuant to Arizona Revised Statute § 13-1204 , brought against the City of Phoenix, Sullivan, Sleeper, Alvarado, Turiano, Gomez, and Merena;- Count Three: Malicious Prosecution, False Arrest, Libel, and Slander pursuant to
Arizona Revised Statute § 12-541 , brought against the City of Phoenix, Sullivan, Sleeper, Alvarado, Blalock, and Swartz; - Count Four: Conspiracy pursuant to
Arizona Revised Statute § 13-1003 , brought against the City of Phoenix, Sullivan, Sleeper, Alvarado, Gomez, Merena, and Turiano; - Count Five: Monell liability pursuant to
§ 1983 , brought against the City of Phoenix; - Count Six4: Excessive Force in violation of the Fourth Amendment, brought against Sleeper, Gomez, Merena, Alvarado, Turiano, and Sullivan;
- Count Seven: False arrest5 in violation of the Fourth Amendment, brought against Sleeper and Sullivan;
- Count Eight: retaliation in violation of the First Amendment, brought against Sleeper and Sullivan;
- Count Nine: Failure to Intervene in violation of the Eighth and Fourteenth Amendments, brought against Sleeper, Merena, Alvarado, Turiano, Gomez, and Sullivan;
- Count Ten: Civil Conspiracy6, brought against the City of Phoenix;
Count Eleven: Aiding and Abetting pursuant to Arizona state law, brought against the City of Phoenix; - Count Twelve: Intentional Infliction of Emotional Distress pursuant to Arizona state law, brought against the City of Phoenix;
- Count Thirteen: Gross Negligence pursuant to Arizona state law, brought against the City of Phoenix;
- Count Fourteen: False Light/Invasion of Privacy pursuant to Arizona state law, brought against the City of Phoenix; and
- Count Fifteen: Defamation pursuant to Arizona state law, brought against the City of Phoenix.
Defendant City of Phoenix moves to dismiss the Complaint on the basis of improper service; failure to properly serve a notice of claim; immunity pursuant to
IV. Discussion
A. Improper Service
Defendant City of Phoenix moves for dismissal, in part, on the basis that Plaintiff failed to include a summons when serving Defendant with the Complaint.
The Court reviews pro se pleadings seeking relief from governmental entities or officials as well as pleadings filed by litigants proceeding in forma pauperis, and the Clerk of Court will not issue summons—even when requested (see Doc. 6)—until the Court has determined that an answer is required. Accordingly, Defendant‘s Motion to Dismiss is denied to the extent it seeks dismissal for failure to properly serve.
B. Notice of Claim
Defendant City of Phoenix asserts that Plaintiff‘s state-law claims against the individual Defendants must be dismissed because Plaintiff failed to properly serve them with a notice of claim, as required by
[A]n individual may be served by: (1) delivering a copy of the summons and the pleading being served to that individual personally; (2) leaving a copy of each at that individual‘s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (3) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.
Arizona courts have held that plaintiffs who do not strictly comply with
Defendant City of Phoenix asserts that “there is no record nor any indication that Plaintiff served any of the individual defendants with a Notice of Claim.” (Doc. 8 at 6).7 Plaintiff responds that he “filed the Notice of Claim with the Phoenix City Clerk . . . on January 19, 2023, and therefore did file with ‘persons authorized to accept service for the public entity . . . or public employee . . . within one hundred eighty days after the cause of
On the one hand, there is a strong argument that Plaintiff failed to comply with
Defendant City of Phoenix next argues that “[w]hile it is unclear what causes of action Plaintiff is attempting to assert against the City, to the extent the Court determines he is asserting a claim for negligence, under Arizona law, governmental entities are entitled to qualified immunity from simple negligence for the discretionary actions of their police officers made in the course of their official duties.” (Doc. 8 at 7.)
The City is correct that, under Arizona law, “in order to assure continued vigorous police work,” police officers and other investigative agents cannot be held liable for mere negligence. Landeros v. City of Tucson, 831 P.2d 850, 851 (Ariz. Ct. App. 1992) (internal citation omitted); see also Hulstedt v. City of Scottsdale, 884 F. Supp. 2d 972, 1017 (D. Ariz. 2012) (“Police making discretionary decisions while acting in their official capacity in Arizona are only liable if the plaintiffs establish gross negligence.“) (cleaned up). However, as summarized above, Plaintiff does not assert any “mere negligence” claims.
The City also asserts thаt it is immune from Plaintiff‘s state-law claims pursuant to
Under Arizona law, a person commits misdemeanor assault by
- Intentionally, knowingly or recklessly causing any physical injury to another person; or
- Intentionally placing another person in reasonable apprehension of imminent physical injury; or
- Knowingly touching another person with the intent to injure, insult or provoke such person.
In State v. Heinze, the Arizona Court of Appeals found that the limitation on a public entity‘s liability under a different Arizona statute,
Courts in this District have also relied on Heinze to conclude that, like the immunity/indemnification exception found in section 41-621, “no felony conviction is required for immunity to apply under
Section 12–820.05, like the insurance coverage statute at issue in Heinze, does not specify that the public employee must have been convicted of a felony. Nor does it provide that the public entity‘s immunity must arise from an act or omission determined to be a felony by a criminal court.
Defendant City of Phoenix argues that because Plaintiff has failed to allege any facts to support that it “knew of a propensity on the part of the individual officers to commit aggravated assault or [unlawful imprisonment],” it is therefore immune from Plaintiff‘s state-law claims against it pursuant to
To sufficiently allege that a public entity “knew of” an employee‘s “propensity” to commit a certain action, a plaintiff must allege that the public entity “had actual knowledge that its employee сommitted an act or acts in the past that were similar to the harm suffered
To clarify, Plaintiff alleges that Turiano used excessive force by “pr[ying] at Plaintiff‘s fingers with extreme force straining his wrists to the point of lacerations and extreme swelling,” and, later, “grabb[ing] Plaintiff‘s hand, still in restraints, and forc[ing] it up and back with the intentiоn to cause further injury to Plaintiff.” (Doc. 1 at 2.) Liberally construed, these allegations are sufficient to allege aggravated assault and are raised in Counts Two, Four, Eleven, Twelve, and Thirteen.10 Accordingly, the City of Phoenix is not immune from Plaintiff‘s claims in those Counts to the extent they are based on Turiano‘s alleged excessive use of force.
However, the allegation that Turiano was previously found to have committed aggravated assault during the course of an arrest does not support that the City of Phoenix
D. Punitive Damages
Defendant City of Phoenix is immune from punitive damages for both Plaintiff‘s state law and federal claims. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981);
E. Criminal Actions
In Counts One, Two, and Four, Plaintiff seeks relief pursuant to
F. Eighth Amendment
In Count Nine, Plaintiff seeks relief related to his arrest based on alleged violations of the Eighth and Fourteenth Amendment. The Eighth Amendment applies only to post-conviction and is not applicable to a claim related to arrest. Accordingly, Count Nine is dismissed to the extent Plaintiff seeks relief pursuant to the Eighth Amendment.
G. Sullivan — Official Capacity
A suit against a defendant in his or her individual capacity seeks to impose personal
Plaintiff names Defendant Sullivan in both his individual and official capacities. To the extent Plaintiff directs his claims against Sullivan in his official capacity, his claims (with the exception of Count Five, discussed infra) are duplicative of his claims against the City of Phoenix. Accordingly, Defendant Sullivan is dismissed to the extent Plaintiff names him in his official capacity.
H. Failure to State a Claim
1. Count Three
In Count Three, Plaintiff alleges state law claims for malicious prosеcution, false arrest, libel, and slander.
a. Malicious Prosecution
Under Arizona law, a claim for malicious prosecution contains six elements: (1) there was a prosecution, (2) it terminated in favor of plaintiff, (3) defendants were prosecutors, (4) defendants were motivated by malice, (5) there was want of probable cause, and (6) the plaintiff sustained damages. Overson v. Lynch, 317 P.2d 948, 949 (Ariz. 1957). While a malicious prosecution action may be brought against those “who wrongfully cause the filing of the charges,” Galbraith v. County of Santa Clara, 307 F.3d 1119, 1126 (9th Cir.2002), if that defendant “loses control over the case once the prosecution has been initiated, his participation in the prosecution thereafter is not such as will subject him to liability.” Walsh v. Eberlein, 560 P.2d 1249, 1252 (Ariz. Ct. App. 1976).
b. Libel/Slander
Under Arizona Law, a private person suing for libel or slander must prove the following: the Defendant (1) published a false and defamatory statement regarding the person; (2) knowing that the statement was false and defamed the other; and (3) acted in reckless disregard of or negligently failed to ascertain these matters. Peagler v. Phoenix Newspapers, Inc., 560 P.2d 1216, 1222 (Ariz. 1977) (citing Restatement (Second) of Torts § 580B (1975)).
Here, Plaintiff alleges only that Defendants “recommended the formal filing of charges under false pretenses.” Plaintiff does not allege this recommendation was “published” or otherwise disseminated publicly. Accordingly, Plaintiff has failed to state claims for libel or slander in Count Three.
c. Sullivan
Although Plaintiff directs his claims in Count Three, in part, against Defendant Sullivan in his individual capacity, he makes no mention of, let alone allegations against, Defendant Sullivan in Count Three. Accordingly, Plaintiff has failed to state a claim against Defendant Sullivan in Count Three.
2. Count Five
Plaintiff asserts a claim of municipal liability against the City of Phoenix in Count Five to the extent it ratified the officers’ actions during Plaintiff‘s arrest and/or to the extent it failed to train the officers before Plaintiff‘s arrest.
“To state a claim under
Municipal liability may also arise when a local government entity fails to adequately train or supervise its employees. See, e.g., Connick v. Thompson, 563 U.S. 51, 60 (2011) (“In limited circumstances, a local government‘s decision not to train certain employees about their legal duty to avoid violating citizens’ rights may rise to the level of an official government policy for purposes of
“A municipality also can be liable for an isolated constitutional violation if the final policymaker ‘ratified’ a subordinate‘s actions.” Christie v. Iopa, 176 F.3d 1231, 1238 (9th Cir. 1999). “To show ratification, a plaintiff must prove that the ‘authorized policymakers approve a subordinate‘s decision and the basis for it.‘” Id. at 1239 (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)). But “[a] mere failure to overrule a subordinate‘s actions, without more, is insufficient to support a
Finally, although Monell claims may have been subject to a lesser pleading standard before Iqbal and Twombly were decided, it is now well established in the Ninth Circuit that a plaintiff seeking to assert such a claim must allege facts that would support the existence of the alleged policy, practice, or custom. See, e.g., A.E. ex rel. Hernandez v. City of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (“[A]llegations in a complaint . . . may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively . . . [and] must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation. This standard applies to Monell claims . . . .“) (citations omitted); Dougherty, 654 F.3d at 900-01 (“Dougherty‘s Monell and supervisory liability claims lack any factual allegations that would separate them from the ‘formulaic recitation of a cause of action‘s elements’ deemed insufficient by Twombly. . . . The Complaint lacked any factual allegations regarding key elements of the Monell claims, or, more specifically, any facts demonstrating that his constitutional deprivation was the result of a custom or practice of the City of Covina or that the custom or practice was the ‘moving force’ behind his constitutional deprivation.“). See also Hyer v. City & Cnty. of Honolulu, 2020 WL 7038953, *6 (D. Hawaii 2020) (“Prior to 2009, the Ninth Circuit . . . regularly held that a claim of municipal liability under Section 1983 was sufficient to withstand a motion to dismiss based on nothing more than bare allegations of an unconstitutional policy, practice, or custom. The low pleading threshold was rejected by the United States Supreme Court in [Iqbal]. Since Iqbal, courts in the Ninth Circuit have repeatedly rejected Monell claims based on conclusory allegations that lack factual content from which one could plausibly infer municipal liability.“) (citations omitted); Brown v. City of Mariposa, 2019 WL 4956142, *4 (E.D. Cal. 2019) (“In order to withstand a motion to dismiss for failure to state a claim, a Monell claim must consist of more than mere formulaic recitations of the existence of an unlawful policy. . . . [W]hile the Court recognizes the inherent difficulty of identifying specific policies absent access to discovery, that is nonetheless the burden of plaintiffs in federal court.“) (citations and internal quotation marks omitted).
a. Ratification
Plaintiff alleges that Defendant Sullivan, in his official capacity,13 “failed to hold accountable the officers under his command, and failed to intervene in the deprivation of Plaintiff‘s federally protected constitutional rights, therefore ratifying police misconduсt.” (Doc. 1 at 10). Plaintiff does not, however, allege facts to support that Defendant Sullivan had any knowledge of Plaintiff‘s arrest or the circumstances related thereto. Christie, 176 F.3d at 1239. Accordingly, Plaintiff has failed to allege facts to support a municipal liability claim based on ratification theory.
b. Failure to Train
Plaintiff alleges that Defendant Sullivan, in his official capacity, “failed to adequately train PPD officers in lawful arrests, charging recommendations, and use of force.” (Id. at 11.) These allegations are insufficient to support a municipal liability claim premised on a failure to train. Plaintiff does not describe what training Phoenix Police offices receive or explain why such training is deliberately indifferent to the constitutional rights of its citizenry. Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal intеrpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled. Id. Accordingly, Plaintiff has failed to allege facts to support a municipal liability claim based on a failure to train theory.
c. Conclusion
Because Plaintiff has failed to state a municipal liability claim based on a theory of
3. Counts Six through Nine
Plaintiff‘s claims in Counts Six through Nine are directed, in part, at Defendant Sullivan in his individual capacity.14 To state a valid claim under
Plaintiff has not alleged in Counts Six through Nine that Defendant Sullivan personally participated in a deprivation of Plaintiff‘s constitutional rights, was aware of a deprivation and failed to act, or formed policies that resulted in Plaintiff‘s injuries. Indeed, Plaintiff makes no allegations at all against Defendant Sullivan in these Counts. Accordingly, Defendant Sullivan is dismissed from Counts Six through Nine.
V. Claims for Which an Answer Will be Required
Liberally construed, Plaintiff has sufficiently stated the following claims:
- A state law claim for false arrest in Count Three against Sleeper, Alvarado, Blalock, and Swartz;
- A Fourth Amendment excessive force claim in Count Six against Sleeper, Gomez, Merena, Alvarado, and Turiano;
- A Fourth Amendment false arrest claim in Count Seven against Sleeper;
- A First Amendment retaliation claim in Count Eight against Sleeper;
A Fourth Amendment failure-to-intervene claim in Count Nine against Sleeper, Merena, Alvarado, Turiano, and Gomez; - A state law aiding and abetting claim in Count Eleven against the City of Phoenix to the extent Plaintiff‘s claim is based on Turiano‘s alleged excessive use of force;
- A state law intentional infliction of emotional distress claim in Count Twelve against the City of Phoenix to the extent Plaintiff‘s claim is based on Turiano‘s alleged use of excessive force; and
- A state law gross negligence claim in Count Thirteen against the City of Phoenix to the extent Plaintiff‘s claim is based on Turiano‘s alleged use of excessive force.
These Defendants will thus be required to answer the indicated claims.
VI. Warnings
A. Address Changes
If Plaintiff‘s address changes, Plaintiff must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules оf Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action.
B. Copies
Plaintiff must serve Defendants, or counsel if an appearance has been entered, a copy of every document that he files.
C. Possible Dismissal
If Plaintiff fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure
IT IS ORDERED:
- Plaintiff‘s Application to Proceed in District Court Without Prepaying Fees or Costs (Doc. 2) is granted. Plaintiff is not required to pay the filing fees for this action.
- Plaintiff‘s “Motion for Leave to Proceed In Forma Pauperis” (Doc. 7) is denied as moot.
- Defendant City of Phoenix‘s Motion to Exceed Page Limit (Doc. 9) is granted.
- The Clerk of Court must file Defendant City of Phoenix‘s Motion to Dismiss, currently lodged at Doc. 8.
- Defendant City of Phoenix‘s Motion to Dismiss (Doc. 8) is granted in part and denied in part, as set forth herein.
- Counts One, Two, Four, Five, Ten, Fourteen, and Fifteen are dismissed without prejudice. Counts Three and Nine are dismissed in part, without prejudice, as set forth herein.
- Defendants Sullivan, Hiatt, Winfield, Colbert, Seitter Ii, Freudenthal, Herricht, and Warren are dismissed without prejudice.
- If Plaintiff attempts to amend to address the shortcomings identified in this Order, the amended complaint must be retyped or rewritten in its entirety (including those claims and Defendants that were not dismissed), and Plaintiff must comply with
Rule 15 of the Federal Rules of Civil Procedure and Rule 15.1 of the Local Rules of Civil Procedure. - Defendants Sleeper, Alvarado, Blalock, Swartz, Gomez, Mereno, Turiano, and the City of Phoenix must answer Counts Three, Six, Seven, Eight, Nine, Eleven, Twelve, and Thirteen, as set forth herein.
- The Clerk of Court must send Plaintiff a service packet including the Complaint (Doc. 1), this Order, and both summons and request for waiver forms for Defendants Sleeper, Alvarado, Blalock, Swartz, Gomez, Mereno, Turiano, and the City of
Phoenix. - Plaintiff must complete and return the service packet to the Clerk of Court within 21 days of the date of filing of this Order. The United States Marshal will not provide service of process if Plaintiff fails to comply with this Order.
- If Plaintiff does not either obtain a waiver of service of the summons or complete service of the Summons and Complaint on a Defendant within 90 days of the filing of the Complaint or within 60 days of the filing of this Order, whichever is later, the action may be dismissed as to each Defendant not served.
Fed. R. Civ. P. 4(m) ; LRCiv 16.2(b)(2)(B)(ii). - The United States Marshal must retain the Summons, a copy of the Complaint, and a copy of this Order for future use.
- The United States Marshal must notify Defendants of the commencement of this action and request waiver of service of the summons pursuant to
Rule 4(d) of the Federal Rules of Civil Procedure andRule 4(j)(2) of the Federal Rules of Civil Procedure andRule 4.1(c) of the Arizona Rules of Civil Procedure , as appropriate. The notice to Defendants must include a copy of this Order. - A Defendant who agrees to waive service of the Summons and Complaint must return the signed waiver forms to the United States Marshal, not the Plaintiff, within 30 days of the date of the notice and request for waiver of service pursuant to
Federal Rule of Civil Procedure 4(d)(1)(F) to avoid being charged the cost of personal service. - The Marshal must immediately file signed waivers of service of the summons. If a waiver of service of summons is returned as undeliverable or is not returned by a Defendant within 30 days from the date the request for waiver was sent by the Marshal, the Marshal must:
- personally serve copies of the Summons, Complaint, and this Order upon Defendant pursuant to
Rule 4(e)(2) and/orRule 4(j)(2) of the Federal Rules of Civil Procedure , as appropriate; and - within 10 days after personal service is effected, file the return of
service for Defendant, along with evidence of the attempt to secure a waiver of service of the summons and of the costs subsequently incurred in effecting service upon Defendant. The costs of service must be enumerated on the return of service form (USM-285) and must include the costs incurred by the Marshal for photocopying additionаl copies of the Summons, Complaint, or this Order and for preparing new process receipt and return forms (USM-285), if required. Costs of service will be taxed against the personally served Defendant pursuant to Rule 4(d)(2) of the Federal Rules of Civil Procedure , unless otherwise ordered by the Court.
- personally serve copies of the Summons, Complaint, and this Order upon Defendant pursuant to
- Defendants must answer the Complaint or otherwise respond by appropriate motion within the time provided by the applicable provisions of
Rule 12(a) of the Federal Rules of Civil Procedure . - Any answer or response must state the specific Defendant by name on whose behalf it is filed. The Court may strike any answer, response, or other motion or paper that does not identify the specific Defendant by name on whose behalf it is filed.
- This matter is referred to Magistrate Judge Deborah M. Fine pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as authorized under
28 U.S.C. § 636(b)(1) .
Dated this 21st day of November, 2023.
Dominic W. Lanza
United States District Judge