Spikes v. Simpson

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Quiwaneca Spikes, Case No.: 2:23-cv-02128-CDS-MDC 4 Plaintiff, ORDER GRANTING IN PART AND 5 vs. DENYING IN PART MOTION TO INVESTIGATE (ECF No. 54) AND — 6 — DENYING MOTION TO ACCEPT 7 I. Simpson, EXECUTION (ECF No. 55) 8 Defendant(s). 9 Pending before the Court are pro se plaintiff’s “Motion to Investigate” (ECF No. 54) 10 (“Investigation Motion”) and “Motion to Accept Execution” (ECF No. 55) (“Acceptance Motion”) 11 (collectively “the Motions”). The Court in part GRANTS and in part DENIES without prejudice the 12 Motion to Investigate (ECF No. 54) and DENIES the Motion to Accept Execution (ECF No. 55) as moot. 13 I. BACKGROUND 14 Plaintiff filed her original Complaint on December 26, 2023, alleging constitutional claims under 15 Section 1983. See generally ECF No. 1-1. After three amendments to the complaint, a Screening Order 16 allowed two claims to proceed, (1) An Eighth Amendment excessive force claim against defendant 17 Simpson, and (2) an Eighth Amendment medical indifference claim against defendant Tito. See 18 generally ECF No. 23. The Court Clerk was directed to issue summons for defendants Simpson and 19 Tito.1 ECF No. 49. Summonses were issued for both defendants, with a return executed for defendant 20 Tito but not executed for defendant Simpson. ECF No. 50, 51, 52. — 21 — — 22 — — 23 — 1 As explained in the Court’s ECF No. 43 Order, several summonses were attempted to defendant 24 Simpson. Summons to the Las Vegas Metro Police Department (“LVMPD”) and Clark County Detention Center (“CCDC”) failed because there was no employee called “I. Simpson” at the 25 workplaces, and is no longer employed with the Nevada Department of Corrections. ECF No. 43 at 2. 1 In the Investigation Motion, plaintiff moves for this Court to “investigate” defendant Simpson’s 2 “[t]rue address” so that service may be accomplished. ECF No. 54 at 1; see also ECF No. 52. In the 3 alternative, plaintiff moves to amend her complaint to replace Defendant Simpson with Warden William 4 Ruebart and Director James Dzurenda. ECF No. 54 at 2. Defendant Tito filed a response to the Motion 5 to Investigate, opposing both of plaintiff’s requests. See generally ECF No. 56. 6 In the Acceptance Motion, plaintiff effectively asks to file the executed summons as evidence of 7 service upon defendant Tito. ECF No. 55 at 1. Plaintiff attached the documents and receipt of the 8 executed summons on Defendant Tito. Id. at 1-2. 9 II. LEGAL STANDARD 10 Plaintiff is currently incarcerated at Florence McClure Women's Correctional Center 11 (“FMWCC”). Because plaintiff is an incarcerated individual proceeding pro se, plaintiff is entitled to 12 rely on the U.S. Marshal for service. Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990) (an 13 incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for 14 service of the summons and complaint by providing the “necessary information to help effectuate 15 service”); see also 28 U.S.C. § 1915 (d); Fed. R. Civ. P. 4(c)(3); Chavez v. Robinson, 817 F.3d 1162 , 16 1166 n.2 (9th Cir. 2016), as amended on reh’g (Apr. 15, 2016) (“[Section] 1915(d) provides that when a 17 plaintiff is proceeding IFP, ‘the officers of the court shall issue and serve all process.’”). 18 As previously done, the Court can order the Office of the Attorney General (“the Office”) to 19 investigate the whereabouts of a defendant who works or formerly worked for the State of Nevada. See 20 ECF No. 43; see also Hernandez v. Russell, No. 3:20-cv-00114-MMD-WGC, ECF No. 36 (ordering the 21 Office to find information and “advise the court” about whether it can find an alternative address to send 22 summons to a defendant, as defendant was not found in the first address provided by the Office). 23 // 24 // — 25 — 1 II. THE MOTION TO INVESTIGATE 2 The Court construes plaintiff’s Investigation Motion as requesting this Court to have the Office 3 of the Attorney General (“the Office”) further investigate the current whereabouts of defendant 4 Simpson. See ECF No. 54; see also Blaisdell v. Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013) (stating 5 that courts have an obligation to give a liberal construction to the filings of pro se litigants, especially 6 when civil rights claims by inmates are involved). The Court GRANTS this part of the Investigation 7 Motion. See ECF No. 43 at 2 (stating that the Court “recognizes the difficulties and obstacles an 8 incarcerated pro se plaintiff faces”). The Court has previously ordered the Office to investigate the 9 whereabouts of defendant Simpson. See ECF No. 43. However, when summons was attempted, 10 defendant Simpson was not found in the Office’s provided address (ECF No. 46) under seal. See ECF 11 No. 52. Therefore, the Office needs to conduct further investigation to ascertain other possible addresses 12 for defendant Simpson which maybe within the Officer’s records. 13 The Court rejects the Defendant Tito’s argument that the Investigation Motion should be denied 14 because plaintiff failed to comply with LR 7-2(d). See LR 7-2(d) (“The failure of a moving party to file 15 points and authorities in support of the motion constitutes a consent to the denial of the motion.”). 16 Plaintiff is incarcerated and proceeding in forma pauperis. Given plaintiff’s status, the Court liberally 17 construes her motion to be sufficiently supported. See ECF No. 54; see also Blaisdell, 729 F.3d at 1241 18 (stating that pro se prisoner plaintiff filings will be liberally construed); Manning v. Masters, No. 2:11– 19 cv–00896–KJD–CWH, 2012 WL 1431359 , at *1 n. 1 (D. Nev. April 25, 2012) (denying defendants 20 argument to dismiss plaintiff’s motion because it did not comply with LR 7-2(d) when plaintiff is pro se, 21 proceeding in forma pauperis, and “sets forth enough to enable the Court and opposing counsel to 22 adequately address the requested relief.”). Therefore, Office shall investigate and advise the Court 23 within twenty-one (21) days from the date of this order if the address provided under seal in ECF No. 24 46 accurately represents the Office’s last known location of defendant Simpson. Within that same 2125 1 day period from the date of this Order, the Office shall also notify the Court if it is aware of an 2 alternative work or residential addresses for defendant Simpson. See Hernandez, ECF No. 36. 3 The Court denies without prejudice the Investigation Motion to the extent that plaintiff requests 4 to amend the complaint to replace defendant Simpson with Warden William Ruebart and Director James 5 Dzurenda. Plaintiff seeks such relief if the Court denied further investigation into Defendant Simpson’s 6 address, but the Court, as stated above, granted that part of the Investigation Motion. See ECF No. 54. 7 III. THE MOTION TO ACCEPT SERVICE 8 The Court construes plaintiff’s Acceptance Motion as a response to the Court’s Order on 9 07/28/25 (ECF No. 49). The Court, however, denies the Acceptance Motion as moot because the 10 executed summons for defendant Alberto Tito Buencamino was already filed on 08/05/25. ECF No. 51. 11 IV. CONCLUSION 12 For the foregoing reasons, the Court grants in part and denies in part the Investigation Motion 13 and denies as moot the Acceptance Motion. 14 // 15 // 16 // 17 // 18 // 19 // 20 // 21 // 22 // 23 // 24 // — 25 — 1 ACCORDINGLY, 2 IT IS ORDERED that: 3 1. The Motion to Investigate (ECF No. 54) is GRANTED in part regarding the Office 4 conducting further investigation as to the current whereabouts of defendant Simpson. The 5 Office shall investigate and advise the Court on the following matters within 21 days 6 from the date of this order: 7 (A) if the address provided under seal in ECF No. 46 accurately represents the 8 Office’s last known location of defendant Simpson; 9 (B) if the Office has any alternative work or residential addresses for defendant 10 Simpson. 11 2. The Motion to Investigate is DENIED in part and without prejudice regarding 12 amending the complaint to replace defendant Simpson with Warden William Ruebart and 13 Director James Dzurenda. 14 3. The Motion to Accept Execution (ECF No. 55) is DENIED as moot. — 15 — 16 DATED: September 17, 2025 17 IT IS SO ORDERED. 19 Hon Maximifian >» D¥Couvillier III 50 United see Judge — 21 — — 22 — NOTICE — 23 — Pursuant to Local Rules IB 3-1 and IB 3-2, a party may object to orders and reports and 95 recommendations issued by the magistrate judge. Objections must be in writing and filed with the Clerk 1 of the Court within fourteen days. LR IB 3-1, 3-2. The Supreme Court has held that the courts of appeal 2 may determine that an appeal has been waived due to the failure to file objections within the specified 3 time. Thomas v. Arn, 474 U.S. 140, 142 (1985). 4 This circuit has also held that (1) failure to file objections within the specified time and (2) 5 failure to properly address and brief the objectionable issues waives the right to appeal the District 6 Court's order and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 7 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452 , 454 (9th Cir. 1983). 8 Pursuant to LR IA 3-1, the plaintiff must immediately file written notification with the court of any 9 change of address. The notification must include proof of service upon each opposing party’s attorney, 10 or upon the opposing party if the party is unrepresented by counsel. Failure to comply with this rule may 11 result in dismissal of the action. — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 —