DAVID S. DOTY, District Judge.
This matter is before the court upon the pro se motion for appointment of counsel
This excessive-force dispute arises out of an alleged altercation on August 1, 2011. Edmonds is a federal inmate at MCF Stillwater. On November 12, 2014, Edmonds filed an amended complaint under 42 U.S.C. § 1983. ECF No. 5. Magistrate Judge Steven E. Rau granted Edmonds's application to proceed in forma pauperis on January 12, 2015. ECF No. 9. To effect service of process by the United States Marshal, Judge Rau directed Edmonds to complete a USM-285 form for each defendant.
Edmonds submitted six USM-285 forms on January 21, 2015. ECF No. 11. On each form, Edmonds stated that service should be executed at 1925 Plymouth Ave. N., Minneapolis, MN 55411, the address for the Fourth Precinct of the Minneapolis Police Department. ECF No. 12. On February 2, 2015, the United States Marshal personally served a summons and complaint for each defendant on non-party Officer Scott Buck at the address provided by Edmonds.
Smith, Taylor, and Waite answered the amended complaint on February 27, 2015, and asserted insufficient service of process as an affirmative defense, among others. ECF No. 14. On March 10, 2015, Edmonds filed the instant motion for default judgment, arguing that defendants have failed to timely respond.
An entry of default occurs "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise." Fed. R. Civ. P. 55(a).
For service to be effective, the plaintiff must direct a non-party to (1) deliver a copy of the summons and complaint to the individual personally, (2) leave a copy of the documents at the individual's dwelling or usual place of abode with a person of suitable age or discretion living therein, (3) deliver a copy of the documents to an agent authorized to receive service of process, or (4) use any other method authorized by Minnesota law. Fed. R. Civ. P. 4(e). If service is ineffective, the court is not required to dismiss the action as to the improperly served defendants.
The court finds that Edmonds has not properly served the defendants. Although Edmonds directed the Marshal to serve the defendants individually, there is nothing in the record showing that the address he provided was correct or that the defendants were personally served.
The court understands that Edmonds may have been misled by the docket entry and executed USM-285 forms indicating that each defendant had been properly served. The court therefore finds that dismissal is not warranted at this time, and that good cause exists to extend the time for Edmonds to properly effect service.
Moreover, under the circumstances presented here, the court will only require Edmonds to effect new service on Schnickel, Ledman, and Williams. The record shows that Smith, Taylor, and Waite have received actual notice of the complaint and that Edmonds substantially complied with Rule 4 when serving these defendants. Smith, Taylor, and Waite also do not argue that they were prejudiced by the manner in which they were served.
As a result, if Edmonds wishes to continue pursuing his claims against Schnickel,
Accordingly, based on the above,
1. The motion for appointment of counsel and default judgment [ECF No. 16] is denied;
2. A summons shall be issued for the second USM-285 form that Edmonds submitted for Schnickel, and the United States Marshal shall effect service of process on Schnickel pursuant to that form;
3. Within thirty days after the date of this order, Edmonds must submit a properly completed USM-285 form for Ledman and Williams, as set forth above. If the information that Edmonds provided on his second USM-285 form for Schnickel will not ensure that the Marshal effects proper service, Edmonds must submit an additional form for Schnickel as well. Failure to comply may result in dismissal pursuant to Rule 41(b) as to those individuals;
4. If Edmonds timely submits the required forms, a summons shall be issued and the United States Marshal shall effect service of process on each defendant for whom a properly completed form is submitted;
5. A copy of this order shall be served together with the summons and Edmonds's amended complaint; and
6. Each defendant on whom service of process is properly effected must file a response to Edmonds's amended complaint, notwithstanding the provisions of 42 U.S.C. § 1997e(g).