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JL 

WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Bryce W. Smith, 

Plaintiff, 

v. 

Paul Penzone, et al., 

Defendants. 

 No. CV 17-03892-PHX-DGC (DMF) 

ORDER 

On October 23, 2017, Plaintiff Bryce W. Smith, who is confined in a Maricopa 

County Jail, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an 

Application to Proceed In Forma Pauperis. In a February 21, 2018 Order, the Court 

denied the deficient Application to Proceed and gave Plaintiff 30 days either to pay the 

filing and administrative fees or file a complete Application to Proceed. On March 5, 

2018, Plaintiff filed another Application to Proceed. In an April 27, 2018 Order, the 

Court granted the Application to Proceed and dismissed the Complaint because Plaintiff 

had failed to state a claim. The Court gave Plaintiff 30 days to file an amended complaint 

that cured the deficiencies identified in the Order. 

 On May 18, 2018, Plaintiff filed his First Amended Complaint. In a June 22, 2018 

Order, the Court dismissed the First Amended Complaint because Plaintiff had failed to 

state a claim. The Court gave Plaintiff 30 days to file a second amended complaint that 

cured the deficiencies identified in the Order. 
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 On July 23, 2018, Plaintiff filed a Second Amended Complaint (Doc. 14). The 

Court will order Defendant Eide to answer the due process threat to safety claim in Count 

One and will dismiss the remaining claims and Defendants without prejudice. 

I. Statutory Screening of Prisoner Complaints

 The Court is required to screen complaints brought by prisoners seeking relief 

against a governmental entity or an officer or an employee of a governmental entity. 28 

U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 

has raised claims that are legally frivolous or malicious, that fail to state a claim upon 

which relief may be granted, or that seek monetary relief from a defendant who is 

immune from such relief. 28 U.S.C. § 1915A(b)(1)–(2). 

 A pleading must contain a “short and plain statement of the claim showing that the 

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 

does not demand detailed factual allegations, “it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009). “Threadbare recitals of the elements of a cause of action, supported by mere 

conclusory statements, do not suffice.” Id. 

 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 

claim 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, 
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342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less 

stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. 

Pardus, 551 U.S. 89, 94 (2007) (per curiam)). 

II. Second Amended Complaint

 In his five-count Second Amended Complaint, Plaintiff sues Maricopa County 

Sheriff Paul Penzone; Fourth Avenue Jail Detention Officers Mendoza, Eide, Wiebel, and 

Miranda; Registered Dietitian Eileen Cowles; and Chaplain Ray. Plaintiff asserts claims 

of retaliation, “involuntary servitude,” denial of basic necessities, and denial of free 

exercise of religion. He seeks injunctive and monetary relief. 

 In Count One, Plaintiff alleges that Defendant Eide retaliated against Plaintiff by 

placing him in a pod that was previously known to be “hostile” to Plaintiff. Plaintiff 

asserts that, acting upon policies and procedures of “policymaker” Defendant Penzone, 

Eide “did knowingly without regard place Plaintiff in harm[’]s way.” Plaintiff further 

claims that Eide failed to act and failed to follow federal PREA guidelines when Eide 

was notified a second time that Plaintiff was in a hostile and threatening situation. 

Plaintiff contends that Eide’s inaction allowed Plaintiff to be “jumped gang-style by 3 

other inmates,” and Eide’s conduct was retaliation for the grievances Plaintiff wrote 

against Eide. Plaintiff alleges that Eide was aware that the pod was “hostile” because 

Plaintiff had previously been removed from that pod. Plaintiff asserts that Eide was the 

“senior member” working the pod when “both incidents happened,” where Plaintiff was 

threatened and moved from the pod, only to be returned to the same hostile pod under 

Eide’s watch. Plaintiff claims that he suffered substantial injuries as a result of Eide’s 

retaliation in moving Plaintiff back to the pod and failure to protect Plaintiff after 

Plaintiff “duly made Eide aware of the imminent danger posed by threats from inmates.” 

As his injury, Plaintiff alleges that he suffered a broken hand, a large hematoma, and a 

“massive head concussion” that caused him to lose consciousness. 

 In Count Two, Plaintiff alleges that Defendant Miranda, acting “by the policies 

and procedures handed down by policymaker Paul Penzone,” subjected Plaintiff to 
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“involuntary servitude” when Miranda gave a direct order to Plaintiff to scrub the walls 

of a cell Plaintiff had just moved into. Plaintiff asserts that he advised Miranda that his 

hand was broken, but Miranda told Plaintiff to clean the walls or be written up. Plaintiff 

claims that he did as he was told while suffering great pain and discomfort. Plaintiff 

alleges that this was an act of retaliation and “another in a long line of things that the 

Sheriff’s Office had been doing because of a previous lawsuit against the Sheriff’s 

Office.” Plaintiff contends that he had a right not to be retaliated against and not to be 

“made to perform slave labor” for Miranda, but Plaintiff did as he was told by Miranda’s 

“direct order.” As his injury, Plaintiff claims that he suffered serious discomfort and pain 

in his broken hand. 

 In Count Three, Plaintiff alleges that Defendant Cowles, under policies and 

procedures handed down by Paul Penzone, “made an intentional decision to serve hard 

brittle crunchy bean patties[,] knowing full well that Plaintiff could not eat [them] 

because of soft diet restrictions.” Plaintiff asserts that he suffered sore and bleeding 

gums and is at substantial risk of suffering more pain and “loss of basic necessities.” 

Plaintiff contends that Cowles plans and designates all menus as the dietitian, “yet she 

has refused to change the menu to comply [with] soft diet so calorie count can be met.” 

Plaintiff claims that he suffered pain and “lack of necessities” because of Cowles’s 

inaction in continuing to serve the fried bean patties. Plaintiff alleges that both 

Defendant Penzone and Defendant Cowles are at fault and share the burden of providing 

basic necessities to Plaintiff. Plaintiff asserts that, because he cannot eat the “brittle non 

soft diet,” he is not getting the required number of calories “designated throughout the 

month.” As his injury, Plaintiff claims that he has suffered “sore and bleeding gum pain 

in teeth,” lack of nutrition, lack of nutrients, and lack of calories “throughout the month.” 

 In Count Four, Plaintiff alleges that “[s]everal requests were sent to MCSO 

Chaplain Ray requesting assistance” with a three-day fast based on the Christian faith 

surrounding the Ritualistic Day of Atonement. Plaintiff asserts that the requests 

explained the purpose of the fast and the method of fasting. Plaintiff claims that he 
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subsequently filed several grievances describing the nature and purpose of the fast. 

Plaintiff contends that “[i]t was also communicated” that Plaintiff was a minister and that 

this was a religious request and “not just a passing fad, which should satisfy the standard 

needed for total compliance.” Plaintiff alleges that Chaplain Ray “did not comply and 

Plaintiff was denied the ability to be free to practice and participate in his chosen 

religion.” Plaintiff asserts that he was not afforded the opportunity to offer atonement for 

sins in the manner described in the Holy Bible and within the parameters Plaintiff 

expressed to the chaplain. Plaintiff claims that Chaplain Ray, acting on or by orders set 

down by Defendant Penzone, infringed upon Plaintiff’s right to religious freedom. As his 

injury, Plaintiff alleges that he suffered a “violation of rights.” 

 In Count Five, Plaintiff alleges that while he was “in the hole” at the Fourth 

Avenue Jail, “several requests were sent” to Chaplain Ray asking for religious services. 

Plaintiff asserts that the requests were clearly marked “Protestant.” Plaintiff contends 

that the inmate handbook says “they would offer religious services at the cell door, yet 

they never did.” Plaintiff claims that written grievances were sent “to see if something 

would be done and still nothing was done to comply with the standard set by the inmate 

handbook and the United States [C]onstitution.” Plaintiff alleges that Chaplain Ray, 

acting under the policies and procedures of Defendant Penzone, violated Plaintiff’s First 

Amendment rights. As his injury, Plaintiff claims that he was unable to exercise his right 

to worship and serve his God. 

III. Failure to State a Claim

 To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants 

(2) under color of state law (3) deprived him of federal rights, privileges or immunities 

and (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th 

Cir. 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d 

1278, 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific 

injury as a result of the conduct of a particular defendant and he must allege an 
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affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode, 

423 U.S. 362, 371-72, 377 (1976). 

 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 of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a 

liberal interpretation of a civil rights complaint may not supply essential elements of the 

claim that were not initially pled. Id. 

A. Official Capacity 

Plaintiff sues Defendants in their individual and official capacities. A suit against 

a defendant in his or her official capacity represents only another way of pleading an 

action against the entity that employs the defendant. Kentucky v. Graham, 473 U.S. 159, 

165 (1985). That is, the real party in interest is not the named defendant, but the entity 

that employs the defendant, in this case, Maricopa County. Id. To bring a claim against 

an individual in his official capacity, a plaintiff must show that the constitutional 

deprivation resulted from the entity’s policy, custom, or practice. Id.; Monell v. Dep’t of 

Soc. Servs. of New York, 436 U.S. 658, 694 (1978). 

 Plaintiff has not asserted that his injuries resulted from any policy, custom, or 

practice of Maricopa County. Plaintiff’s references to policies and procedures set forth 

by Defendant Penzone are insufficient for the reasons explained below. Thus, Plaintiff 

has failed to state an official capacity claim against any Defendant. 

 B. Defendant Penzone 

 There is no respondeat superior liability under § 1983 and, therefore, a defendant’s 

position as the supervisor of persons who allegedly violated Plaintiff’s constitutional 

rights does not impose liability. Monell, 436 U.S. 658; Hamilton v. Endell, 981 F.2d 

1062, 1067 (9th Cir. 1992); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 

“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must 

plead that each Government-official defendant, through the official’s own individual 

actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. 
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 Plaintiff has not alleged that Defendant Penzone personally participated in a 

deprivation of Plaintiff’s constitutional rights, or was aware of a deprivation and failed to 

act. Plaintiff’s vague references to policies set by Penzone are insufficient; Plaintiff does 

not identify any specific policy or allege facts to show the terms of the policy or that it 

resulted in his injuries. The Court will dismiss without prejudice Defendant Penzone. 

 C. Defendants Mendoza and Wiebel 

 Plaintiff does not connect any of the allegations in the Second Amended 

Complaint to Defendants Mendoza and Wiebel. Plaintiff has failed to state a claim 

against these Defendants, and they will be dismissed. 

D. Count One 

A viable claim of First Amendment retaliation contains five basic elements: (1) an 

assertion that a state actor took some adverse action against an inmate (2) because of 

(3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 

exercise of his First Amendment rights (or that the inmate suffered more than minimal 

harm) and (5) did not reasonably advance a legitimate correctional goal. Rhodes v. 

Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); see also Hines v. Gomez, 108 F.3d 265, 

267 (9th Cir. 1997) (retaliation claims require an inmate to show (1) that the prison 

official acted in retaliation for the exercise of a constitutionally protected right, and 

(2) that the action “advanced no legitimate penological interest”). The plaintiff has the 

burden of demonstrating that his exercise of his First Amendment rights was a substantial 

or motivating factor behind the defendants’ conduct. Mt. Healthy City School Dist. Bd. of 

Educ. v. Doyle, 429 U.S. 274, 287 (1977); Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 

1310, 1314 (9th Cir. 1989). 

 Plaintiff’s allegations do not support that Defendant Eide placed Plaintiff in a 

“hostile” pod and failed to follow PREA guidelines in retaliation for Plaintiff filing 

grievances against Eide. Plaintiff does not identify the protected conduct in which he 

engaged, when it occurred, or how it related to Eide. Plaintiff’s conclusory allegation 

that Eide retaliated against him is insufficient. Plaintiff has not alleged facts to support 
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that his filing of grievances against Eide was a “substantial or motivating factor behind” 

Eide’s conduct. 

 E. Count Two 

 “The Thirteenth Amendment declares that ‘[n]either slavery nor involuntary 

servitude, except as punishment for crime whereof the party shall have been duly 

convicted, shall exist within the United States, or any place subject to their jurisdiction.’” 

United States v. Kozminski, 487 U.S. 931, 942 (1988) (quoting Amendment XIII). “By 

its terms [the Thirteenth] Amendment excludes involuntary servitude imposed as legal 

punishment for a crime.” Id. at 943. Similarly, the Thirteenth Amendment does not 

prohibit involuntary servitude as part of a pretrial detainee’s detention. See Hopper v. 

Clark, No.C06-5282, 2007 WL 2138755, at *6 (W.D. Wash. July 23, 2007) (“the 

Thirteenth Amendment does not prohibit involuntary servitude as part of Plaintiff’s 

detention (citing e.g. Ford v. Nassau County Exec., 41 F.Supp.2d 392 (E.D.N.Y. 1999))); 

Biieol v. Nelson, 579 F.2d 423 (7th Cir. 1978)); see also Richardson v. Las Vegas Metro. 

Police Dep’t, No. 2:13CV1481, 2013 WL 6528509, at *6 (D. Nev. Dec. 11, 2013). 

 Plaintiff fails to allege facts to support that he was subjected to involuntary 

servitude other than as a normal part of his pretrial detention. Being required to clean 

walls, even with one good hand, does not amount to servitude beyond the normal 

requirements of pretrial incarceration. Accordingly, Plaintiff fails to state a claim for 

violation of his Thirteenth Amendment rights. 

 F. Count Three 

 A pretrial detainee’s claims regarding the food he is served concern his conditions 

of confinement. Thus, the standards set forth above with respect to Count One also apply 

to Plaintiff’s allegations in Count Three. In addition, the Fourteenth Amendment requires 

“only that prisoners receive food that is adequate to maintain health; it need not be tasty 

or aesthetically pleasing.” LeMaire v. Maass, 121 F.3d 1444, 1456 (9th Cir. 1993) 

(citations omitted). “The fact that the food occasionally contains foreign objects or 

sometimes is served cold, while unpleasant, does not amount to a constitutional 
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deprivation.” Id. (quoting Hamm v. Dekalb County, 774 F.2d 1567, 1575 (9th Cir. 1985). 

An inmate may, however, state a claim where he alleges that he is served meals with 

insufficient calories for long periods of time. Id.

Plaintiff’s allegations do not support that Defendant Cowles made an intentional 

decision to serve Plaintiff the bean patties, knowing that he could not eat them. 

Plaintiff’s conclusory allegation that Cowles knew “full well” that Plaintiff could not eat 

the patties is insufficient; Plaintiff does not specify how Cowles knew Plaintiff was on a 

soft diet; whether, when, or how he informed Cowles that he could not eat the patties; 

what response, if any, he received from Cowles; and how Cowles’s action or inaction was 

objectively unreasonable. Plaintiff’s conclusory allegation that Defendant Penzone is “at 

fault” because Penzone shares the burden of providing basic necessities to Plaintiff is 

insufficient. As discussed above, there is no respondeat superior liability under § 1983, 

and Plaintiff does not allege any facts to support that Penzone created a policy or made a 

decision that placed Plaintiff at substantial risk of suffering serious harm. Furthermore, 

although Plaintiff alleges that he “is not getting the required amount of calories,” he does 

not specify why he believes his meals are calorically inadequate without the bean patties, 

and he has not alleged facts to support that he was served insufficient calories for a 

lengthy period or that he has lost a significant amount of weight as a consequence of 

receiving insufficient calories. Thus, Plaintiff has failed to state a claim in Count Three, 

and it will be dismissed. 

 G. Counts Four and Five 

 To state a First Amendment free-exercise-of-religion claim, a plaintiff must allege 

that a defendant substantially burdened the practice of the plaintiff’s religion by 

preventing him from engaging in a sincerely held religious belief and that the defendant 

did so without any justification reasonably related to legitimate penological interests. 

Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008). De minimis deprivations do not 

give rise to a constitutional violation. See Rapier v. Harris, 172 F.3d 999, 1006 n.4 (7th 

Cir. 1999). 
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 Plaintiff’s allegations in Count Four are too vague and conclusory to state a claim 

for denial of free exercise of religion. First, Plaintiff’s facts do not suggest that his 

inability to engage in a three-day fast on one occasion was more than a de minimis 

burden; Plaintiff does not allege, for example, that his religion mandates that he fast. 

Furthermore, Plaintiff does not specify what response, if any, he received from Chaplain 

Ray regarding Plaintiff’s requests for assistance with the fast. Plaintiff presumably could 

have fasted simply by going without food for the required period of time. The Court 

cannot determine what action Ray failed to take, or whether it was “without any 

justification reasonably related to legitimate penological interests.” In addition, although 

Plaintiff alleges that he filed several grievances, he does not specify when or to whom he 

submitted the grievances or what response he received, if any. As presented, Plaintiff 

does not state a free-exercise claim in Count Four, and it will be dismissed. 

 Plaintiff’s allegations in Count Five are similarly vague and conclusory. Plaintiff 

does not describe the religious services he requested or specify what response, if any, he 

received from Chaplain Ray. Nor does Plaintiff specify when or to whom he submitted 

grievances, the content of the grievances, or what response he received. Plaintiff has 

failed to state a free-exercise claim in Count Five, and it will be dismissed. 

IV. Claims for Which an Answer Will be Required

 A pretrial detainee has a right under the Due Process Clause of the Fourteenth 

Amendment to be free from punishment prior to an adjudication of guilt. Bell v. Wolfish, 

441 U.S. 520, 535 (1979). A pretrial detainee may therefore allege a cause of action 

under the Due Process Clause where conditions of confinement, such as food, clothing, 

shelter, medical care, and personal safety, “amount to punishment.” Bell, 441 U.S. at 

535; see DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 200 (1989). 

Conditions amount to punishment when: (1) the conditions result in a sufficiently serious 

denial of the minimum standard of care, and (2) the official’s actions or omissions with 

respect to the conditions are objectively unreasonable, such that it can be inferred that 

those conditions are imposed for the purpose of punishment. Kingsley v. Hendrickson, 
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___ U.S. ___, 135 S. Ct. 2466, 2473 (2015); Bell, 441 U.S. at 538; Castro v. Cnty. of Los 

Angeles, 833 F.3d 1060, 1070-71 (9th Cir. 2016). Thus, to state a claim of 

unconstitutional conditions of confinement against an individual defendant, a pretrial 

detainee must allege facts that show: 

(i) the defendant made an intentional decision with respect to 

the conditions under which the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of 

suffering serious harm; (iii) the defendant did not take 

reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have 

appreciated the high degree of risk involved—making the consequences of the defendant’s conduct obvious; and (iv) by not taking such measures, the defendant caused the plaintiff’s injuries. 

Gordon v. Cnty. of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018). 

 Whether the conditions and conduct rise to the level of a constitutional violation is 

an objective assessment that turns on the facts and circumstances of each particular case. 

Id.; Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005). However, “a de minimis 

level of imposition” is insufficient. Bell, 441 U.S. at 539 n.21. In addition, the “‘mere 

lack of due care by a state official’ does not deprive an individual of life, liberty, or 

property under the Fourteenth Amendment.” Castro, 833 F.3d at 1071 (quoting Daniels 

v. Williams, 474 U.S. 327, 330-31 (1986)). Thus, a plaintiff must “prove more than 

negligence but less than subjective intent—something akin to reckless disregard.” Id. 

The same standards apply to a pretrial detainee’s threat-to-safety or failure-to-protect 

claim. Id. 

The Court concludes that Plaintiff has sufficiently alleged a due process claim for 

a threat to safety. Plaintiff alleges that Eide placed him in a hostile pod knowing of the 

risk to Plaintiff’s safety; that Eide did so knowing that Plaintiff previously had been 

removed from the pod for his safety, a fact known to Eide because he was a senior officer 

responsible for the pod when Plaintiff previously was removed; and that Plaintiff’s return 

to the pod resulted in him being seriously assaulted, resulting in a fractured hand, 

hematoma, and concussion. From these facts one can infer that a reasonable official in 
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the same position would have appreciated the high degree of risk involved. Although 

light on factual details, Plaintiff’s allegations, liberally construed, state a claim for 

violation of his due process right to be free from punishment prior to an adjudication of 

guilt. 

V. Warnings

A. Release

 If Plaintiff is released while this case remains pending, and the filing fee has not 

been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 

that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 

(2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 

result in dismissal of this action. 

B. 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 of 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. 

C. Copies

 Plaintiff must serve Defendant, or counsel if an appearance has been entered, a 

copy of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a 

certificate stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, 

Plaintiff must submit an additional copy of every filing for use by the Court. See LRCiv 

5.4. Failure to comply may result in the filing being stricken without further notice to 

Plaintiff. 

D. 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 to comply with any order of the Court). 
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IT IS ORDERED: 

 (1) The retaliation claim in Count One and Counts Two, Three, Four, and Five 

are dismissed without prejudice. 

 (2) Defendants Penzone, Mendoza, Wiebel, Miranda, Cowles, and Ray are 

dismissed without prejudice. 

 (3) Defendant Eide must answer the due process threat to safety claim in Count 

One. 

 (4) The Clerk of Court must send Plaintiff a service packet including the 

Second Amended Complaint (Doc. 14), this Order, and both summons and request for 

waiver forms for Defendant Eide. 

 (5) 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. 

 (6) If Plaintiff does not either obtain a waiver of service of the summons or 

complete service of the Summons and Second Amended Complaint on 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. Fed. R. Civ. P. 4(m); LRCiv 

16.2(b)(2)(B)(ii). 

 (7) The United States Marshal must retain the Summons, a copy of the Second 

Amended Complaint, and a copy of this Order for future use. 

 (8) The United States Marshal must notify Defendant 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. The notice to Defendant must include a copy of this 

Order. 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 Defendant within 30 days from the date the request for waiver was sent 

by the Marshal, the Marshal must: 
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(a) personally serve copies of the Summons, Second Amended 

Complaint, and this Order upon Defendant pursuant to Rule 4(e)(2) of the Federal 

Rules of Civil Procedure; and 

(b) 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 additional copies of the Summons, Second Amended 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. 

 (9) If Defendant agrees to waive service of the Summons and Second 

Amended Complaint, Defendant must return the signed waiver forms to the United 

States Marshal, not the Plaintiff.

 (10) Defendant Eide must answer the Second Amended 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. 

 (11) 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 10th day of August, 2018.