Maggay v. Micke

Background

Roderick Maggay, identified as a federal prisoner confined at the Federal Correctional Institution at Herlong, filed a civil-rights complaint under 42 U.S.C. § 1983 against several officers at the Santa Rita County Jail. The complaint filed as Dkt. No. 11 was the operative complaint because Maggay did not file a second amended complaint within the time allowed by an earlier court order.

The court had ordered service of the amended complaint and directed Defendant Deputy Perez to file a dispositive motion or notice regarding such a motion. The Clerk sent a request to waive service to Officer Perez at the Jail. Defendant Micke then filed a notice stating that Officer Perez, formerly designated as Officer Perry, was not employed by the Alameda County Sheriff’s Office and had not been employed there since before the office received the initial service request. The opinion states that Perez had not been served.

Court’s Action

The court explained that an incarcerated plaintiff proceeding without prepayment of filing fees may rely on service by the United States Marshal but may not remain silent when service problems arise. The plaintiff must request service on the appropriate defendant and try to correct known defects. Because the case had been pending for more than 90 days, the court stated that, absent good cause, the claims against Perez were subject to dismissal without prejudice under Federal Rule of Civil Procedure 4(m).

Judge Beth Labson Freeman ordered Maggay to file a notice providing information about Perez’s current whereabouts or sufficient identifying information for the Marshal to complete service. The order gave Maggay 28 days from the date the order was filed to provide that information. It did not dismiss the claims at that time; it stated that the claims against Perez would be dismissed without prejudice if Maggay failed to comply, without further notice.