Opinion
CIV-22-50-D
08-29-2023
MIGUEL DORANTES, Plaintiff, v. SGT. NYE et al., Defendants.
REPORT AND RECOMMENDATION
SHON T. ERWIN, UNITED STATES MAGISTRATE JUDGE
Plaintiff Miguel Dorantes, a prisoner appearing pro se, has filed a Second Amended Complaint under 42 U.S.C. § 1983 alleging violations of his constitutional rights. (ECF No. 47). Chief United States District Judge Timothy D. DeGiusti has referred the matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). The matter is currently before the undersigned for Plaintiff's failure to serve the defendants-Nikki Wilson and Stephen Wood -pursuant to Federal Rule of Civil Procedure 4(m).
I. RELEVANT HISTORY
The Second Amended Complaint was filed on January 20, 2023. (ECF No. 47). On May 26, 2023, an Order establishing deadlines and requiring the Plaintiff to file proof of service on Nikki Wilson and Stephen Wood or show good cause why service has not been made was entered. Plaintiff was cautioned that absent a showing of service or good cause, the undersigned would recommend that the Second Amended Complaint (ECF No. 47) be dismissed against Defendants Nikki Wilson and Stephen Wood without prejudice. See ECF No. 52:2. Following the entry to show cause, the Court granted an additional extension of deadlines and denied Plaintiff's Motion for Counsel. (ECF No. 60). But despite filing other motions, to date, the Plaintiff has neither filed proof of service nor responded to the Order to show cause regarding service on Defendants Nikki Wilson and Stephen Wood. (ECF No. 52). As a result, the Court should dismiss these defendants.
II. DISMISSAL IS WARRANTED
Plaintiff is required to serve each Defendant with a summons and a copy of the complaint. Fed.R.Civ.P. 4(c)(1). If service is not made within 90 days after filing of the complaint, the Court may dismiss the action against an unserved defendant without prejudice. Fed.R.Civ.P. 4(m). Here, more than seven months have elapsed since Plaintiff filed his Second Amended Complaint, and nearly three months have passed since the undersigned required the Plaintiff to show proof of service or good cause for failure to serve. (ECF Nos. 47 and 52)
Because Plaintiff's Complaint was subject to initial screening under 42 U.S.C. § 1997e(c)(1) and 28 U.S.C. § 1915(e)(2)(B), the Court postponed commencement of the 90-day period for service of Defendants.
Although Plaintiff is a pro se litigant, he is required to comply with the same rules of procedure governing other litigants, including Rule 4. Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992); DiCesare v. Stuart, 12 F.3d 973, 980 (10th Cir. 1993). Thus, Plaintiff's failure to complete proper service, is grounds for dismissal of his claims against each in the absence of justification for the failure. Jones v. Frank, 973 F.2d 872, 873-74 (10th Cir. 1992).
A. Mandatory extension
As stated, Plaintiff is required to serve Defendants with a summons and a copy of his complaint. See Fed.R.Civ.P. 4(c)(1). The Court must, then, on its own motion, dismiss the action without prejudice against an unserved defendant if such service is not made within the requisite 90 days. See Fed.R.Civ.P. 4(m); see supra. Plaintiff has failed to establish service in this case. Accordingly, a mandatory extension of time is not warranted. See Fed.R.Civ.P. 4(m); Espinoza v. United States, 52 F.3d 838, 841 (10th Cir. 1995).
B. Permissive extension
“[W]hen a plaintiff fails to show good cause for untimely service, 'the district court must still consider whether a permissive extension of time may be warranted. At that point the district court may in its discretion either dismiss the case without prejudice or extend the time for service.' ” Murphy, 556 Fed.Appx. at 668 69 (quoting Espinoza, 52 F.3d at 841).
The Court considers three factors in deciding whether a permissive extension is warranted. First, the Court considers whether the statute of limitations would bar Plaintiff from refiling against Defendants Nikki Wilson and Stephen Wood. See Espinoza, 52 F.3d at 842. Here, the Court has determined the first date attributable to Plaintiff's claims is October 7, 2021, so Plaintiff still has almost 2 months to re-file his suit against Defendants Nikki Wilson and Stephen Wood. Additionally, because Plaintiff timely filed his Complaint in January 2022, Oklahoma's savings clause would salvage Plaintiff's ability to refile against Defendants. That statute provides:
Plaintiff's only reference to a date the alleged claims first occurred is contained in his initial Complaint (ECF No. 1). The Court has further determined that the relevant dates attributable to the alleged allegations are between October 7, 2021 and late November 2021. See ECF Nos. 1, 32-1:3-5 and 32-10:3. Mr. Dorantes has a two-year limitations period in which to file the action. See McCarty v. Gilchrist, 646 F.3d 1281, 1289 (10th Cir. 2011) (noting Oklahoma's personal injury statute of limitations is two years).
If any action is commenced within due time, and a judgment thereon for the plaintiff is reversed, or if the plaintiff fail in such action otherwise than upon the merits, the plaintiff ... may commence a new action within one (1) year after the reversal or failure although the time limit for commencing the action shall have expired before the new action is filed.Okla. Stat. tit. 12, § 100; see also Mott v. Carlson, 786 P.2d 1247, 1248 (Okla. 1990) (noting that the original suit had been dismissed for failure to serve summons and holding that Okla. Stat. tit. 12, § 100 “allows a suit so dismissed to be refiled within one year”). Under these circumstances, this factor weighs against an extension of time.
Second, the Court considers whether Plaintiff has unsuccessfully attempted to serve the United States. See Espinoza, 52 F.3d at 842. That circumstance is not present here.
Third, “[t]he district court should also take care to protect [a] pro se plaintiff from consequences of confusion or delay attending the resolution of an in forma pauperis petition.” Espinoza, 52 F.3d at 842 n.8 (quotation omitted). That circumstance is not present here.
C. Summary
Here, Plaintiff has filed three Complaints, see ECF Nos. 1, 14 and 47, but Mr. Dorantes did not name Defendants Nikki Wilson and Stephen Wood until the Second Amended Complaint. See ECF No. 47. Even so, the Court has allowed great lenience when reviewing each of his submissions and repeatedly allowed extensions to serve these Defendants. See supra. To date, however, Plaintiff has not even attempted service on either Defendants Wood or Wilson and there is no indication that either Defendant has attempted to evade service of process.
Based on the forgoing, the undersigned finds that a permissive extension of time to effect service of process upon the Defendants is not warranted. Plaintiff failed to comply with the Court's order (ECF No. 52) to serve Defendants Nikki Wilson and Stephen Wood and the Court should find no good cause for a mandatory extension of time and should decline a permissive extension of time.
Although Plaintiff appears pro se, he is required to comply with the same fundamental rules of procedure as any other litigant. Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994); cert denied, 513 U.S. 1090 (1995); Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992). Plaintiff's failure to achieve service consistent with various Court Orders, combined with the Court's attempt to manage and control its caseload, warrants a dismissal of the action without prejudice. See Gripe v. City of Enid, 312 F.3d 1184, 1188 (10th Cir. 2002) (“The Federal Rules of Civil Procedure authorize sanctions, including dismissal ... for failing to comply with court rules or any order of the court, see Fed.R.Civ.P. 41(b).”). See also Nasious v. Two Unknown B.I.C.E. Agents at Arapahoe County Justice Ctr., 492 F.3d 1158, 1161 n. 2, 1162 (10th Cir. 2007) (sua sponte dismissal for failure to comply with court's orders permitted under federal rules, and court need not follow any particular procedures in dismissing action without prejudice for failure to comply). As of this date, Plaintiff has failed to show good cause why to serve Defendants Nikki Wilson and Stephen Wood, and because Plaintiff is not entitled to either a mandatory or permissive extension of time to effect service, dismissal is warranted.
III. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Considering the foregoing, it is recommended that Plaintiff's claims against Defendants Nikki Wilson and Stephen Wood be dismissed without prejudice pursuant to Rule 4(m). See Krueger v. Doe, No. 98-6144, 1998 WL 717286 (10th Cir. 1998) (upholding dismissal of pro se prisoner's complaint for failure to effect service on a defendant even though the statute of limitations had likely expired, and despite the fact that the plaintiff had made substantial effort to locate the defendant).
Plaintiff is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by September 15, 2023 in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. Plaintiff is further advised that failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
IV. STATUS OF THE REFERRAL
This Report and Recommendation does not terminate the referral to the undersigned magistrate judge in the captioned matter.