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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

James L. Kemp,

 Plaintiff,

vs.

Joseph M. Arpaio, et al.,

 Defendants.

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No. CV-15-01784-PHX-PGR (ESW)

 ORDER 

 

Having reviewed de novo the Report and Recommendation of Magistrate

Judge Willett (Doc. 77) in light of Plaintiff’s Objections to the Magistrate Judge’s

PLRA Mandated Report and Recommendations (Doc. 80), the Court finds that the

plaintiff’s objections should be overruled because the Court agrees with the

Magistrate Judge’s conclusions in her screening of the plaintiff’s Second Amended

Complaint (Doc. 76). Therefore,

IT IS ORDERED that the Magistrate Judge’s Report and Recommendation

(Doc. 77) is accepted and adopted by the Court.

IT IS FURTHER ORDERED that the plaintiff’s claims in Count One of the

Second Amended Complaint regarding the alleged assaults that occurred on April

7, 2010, August 6, 2010, and August 18, 2013 are dismissed. 

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IT IS FURTHER ORDERED that defendants Garner, Brown, and Arpaio shall

answer the Eighth Amendment failure to protect claim pertaining to the alleged

September 8, 2014 assault in Count One of the Second Amended Complaint. 

IT IS FURTHER ORDERED that the following counts of the Second Amended

Complaint are dismissed: Count Two, Count Three, Count Four, Count Seven,

Count Nine, Count Ten, Count Twelve, Count Thirteen, Count Fourteen, and Count

Fifteen. 

IT IS FURTHER ORDERED that defendant Feraru shall answer Count Five

of the Second Amended Complaint. 

IT IS FURTHER ORDERED that defendants Arpaio, Tenny, McKay, Fisk, and

Chavira shall answer the First Amendment retaliation claim in Count Six of the

Second Amended Complaint. 

IT IS FURTHER ORDERED that the plaintiff’s claims under 42 U.S.C. §§ 1985

and 1986 are dismissed. 

IT IS FURTHER ORDERED that defendants San Martin and Anders shall

answer Count Eight of the Second Amended Complaint. 

IT IS FURTHER ORDERED that the plaintiff’s claims relating to incidents

which occurred prior to September 2013 are dismissed as time-barred.

IT IS FURTHER ORDERED that defendants Steinhauser, Burke, Guta,

Bernal-Fulford, and Baerg shall answer Count Eleven of the Second Amended

Complaint regarding alleged Eighth and Fourteenth Amendment medical claims

arising from incidents dated October 18, 2013, September 9, 2014, and March 13,

2015. 

IT IS FURTHER ORDERED that defendants Arpaio, Alvarez, Tenny, and

McKay shall answer Count Sixteen of the Second Amended Complaint. 

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1

If a defendant is an officer or employee of the Arizona Department of

Corrections, the plaintiff shall list the address of the specific institution where the

officer or employee works. Service cannot be effected on an officer or employee at

the Central Office of the Arizona Department of Corrections unless the officer or

employee works there. 

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IT IS FURTHER ORDERED that defendants Maricopa County, Montgomery,

Rada, Najera, Klages, Rubio, Shugart-LBJ-McKay Team, Flannery, Carper, Acosta,

Flaggman, Balaji, Wade, Bretado, Cooper, Odom, Logan, Cruz, Lee, Angry, Hughes,

Bruner, Sminch, and Grange are dismissed without prejudice from this action.

IT IS FURTHER ORDERED as follows:

1. The Clerk of Court shall send the plaintiff a service packet including the

Second Amended Complaint (Doc. 76), this Order, and a copy of the Marshal’s

Process Receipt & Return form (USM-285) and Notice of Lawsuit & Request for

Waiver of Service of Summons form for defendants Baerg, Garner, McKay, Fisk,

Chavira, Alvarez, Brown, Steinhauser, and Burke. 

2. The plaintiff shall complete and return the service packet to the Clerk of

Court within 21 days of the date of filing of this Order.1

 The United States Marshal

will not provide service of process if the plaintiff fails to comply with this Order. 

3. If the plaintiff does not either obtain a waiver of service of the summons or

complete service of the Summons and Second Amended Complaint on a defendant

within 90 days of the filing of the Second Amended 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)(i). 

4. The United States Marshal shall retain the Summons, a copy of the Second

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

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5. The United States Marshal shall notify defendants Baerg, Garner, McKay,

Fisk, Chavira, Alvarez, Brown, Steinhauser, and Burke 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 the defendants shall include a copy

of this Order. The Marshal shall file waivers of service of the summons or requests

for waivers that were returned as undeliverable as soon as they are received. If a

waiver of service of summons is returned as undeliverable or is not returned by the

defendants within thirty days from the date the request for waiver was sent by the

Marshal, the Marshal shall: 

(a) Personally serve copies of the Summons, Second Amended

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

Federal Rules of Civil Procedure; and

(b) Within ten days after personal service is effected, file the return of

service for the defendants, 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 the defendants. The costs of service shall be enumerated on the return of

service form (USM-285) and shall 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 defendants

pursuant to Rule 4(d)(2) of the Federal Rules of Civil Procedure, unless otherwise

ordered by the Court. 

6. If the defendants agree to waive service of the Summons and Second

Amended Complaint (Doc. 76), he or she shall return the signed waiver forms to

the United States Marshal, not to the plaintiff. 

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 7. The defendants shall answer the Second Amended Complaint or otherwise

respond by appropriate motion within the time provided by applicable provisions of

Rule 12(a) of the Federal Rules of Civil Procedure. 

IT IS FURTHER ORDERED that the following motions are denied as moot:

(i) Defendants Arpaio and Tenny’s Motion for Summary Judgment (Doc. 53), which

concerns the First Amended Complaint; (ii) Defendant Brendon Baerg’s 12(B)(5)

Motion to Dismiss for Insufficient Service of Process (Doc. 63); and (iii) the plaintiff’s

Motion to Extend Time for Service on Defendant Brendon Baerg (Doc. 68).

DATED this 21st day of February, 2017.

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