Opinion
1:21-CV-00132
05-03-2022
JOCELYN GABRIEL, Plaintiff, v. ICE, et al., Defendants.
MEMORANDUM OPINION AND ORDER
MATTHEW W. BRANN CHIEF UNITED STATES DISTRICT JUDGE
Plaintiff Jocelyn Gabriel filed the above-captioned pro se civil action, which names 12 Defendants, including multiple federal agencies and numerous federal and state officials. Following litigation and an appeal concerning compliance with the requirements for proceeding in forma pauperis, this Court issued an Order on December 3, 2021, permitting Plaintiff to submit an appropriate in forma pauperis application or pay the full filing fee.
Doc. 1.
Id. at 6-8.
See Doc. 20.
Gabriel opted to pay the full filing fee, which was received by the Court on January 4, 2022. At that point, Gabriel's complaint was deemed filed and thus- under Federal Rule of Civil Procedure 4-he was required to serve all named Defendants or obtain waivers of service of summons from them.
Doc. 21.
See FED. R. CIV. P. 4(a)-(d); see also FED. R. CIV. P. 4(l) (requiring proof of service to be made to the court “by the server's affidavit” unless service is waived).
Gabriel appears to have taken no action with regard to service of his complaint, nor did he file anything on the docket in the 97 days following his payment of the filing fee. Accordingly, on April 11, 2022, the Court issued an Order to show cause, notifying Gabriel that he was likely “in noncompliance with the time limits for service set forth in Federal Rule of Civil Procedure 4(m), ” and directing Gabriel to explain why his complaint should not be dismissed for failure to serve Defendants within the allotted time (as Rule 4(m) requires).
Doc. 23.
Gabriel responded on April 28, 2022. In his response, he asserts that he “never received any notice from this Court in any of the orders issued” that he had “failed to effectuate proper service of process.” He also argues that this Court's December 3, 2021 Order “contained no reference to the requirements of Rule 4(m) nor any notice that this Court deemed the 90 day filing window to have expired . . . on March 3, 2022 or any other date.” He further contends that “no motion seeking dismissal has been filed by any Defendant, ” and that, “though this Court can dismiss [the complaint] on its own motion, it must first provide notice to the Plaintiff.”
Doc. 24.
Id. at 4.
Id. at 5.
Id.
Gabriel appears to be confused by this Court's April 11, 2022 Order and the Federal Rules of Civil Procedure. First, the obvious reason that “no motion seeking dismissal has been filed by any Defendant” is that Gabriel has not served any Defendant, even though it was his responsibility to do so. Moreover, although Gabriel's complaint was lodged in 2021, it was never deemed filed because he had not completed the appropriate application to proceed in forma pauperis or paid the requisite filing fee. This Court's December 3, 2021 Order explicitly told Gabriel to choose one of those options, which Gabriel did when he paid the full filing fee on January 4, 2022. More than 90 days elapsed from that date without Gabriel producing any notice of service or waivers of service.
This Court's April 11, 2022 Order did exactly what is required under Federal Rule of Civil Procedure 4(m) and what Gabriel argues was necessary, i.e., the Court provided notice to Gabriel that it would dismiss his case for failure to serve unless he showed “good cause for the failure.” This April 11 Order did not dismiss Gabriel's case; it provided notice to Gabriel that it would dismiss the case-as expressly mandated by Rule 4(m)-unless Gabriel showed good cause for his failure to serve.
See FED. R. CIV. P. 4(m) (“If a defendant is not served within 90 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiffmust dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.” (emphasis added)).
Gabriel is mistaken that some prior, additional notice was required to be provided to him. He is likewise mistaken that this Court was required to inform him about “the requirements of Rule 4(m).” It is Gabriel's responsibility to prosecute his case, and the Court is under no obligation to provide legal assistance to him in that prosecution. Therefore, while it is doubtful that Gabriel has demonstrated good cause for his failure to timely serve Defendants, the Court will nevertheless give Gabriel the benefit of the doubt and provide him with an additional 60 days to effectuate service.
See Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 243-44 (3d Cir. 2013).
AND NOW, upon consideration of the foregoing, IT IS HEREBY ORDERED that:
1. Gabriel shall have an additional 60 days from the date of this Order to effectuate service of process or obtain waivers of service of summons for each named Defendant. 2. If Gabriel fails to properly serve his complaint or obtain waivers of service of summons within the time allotted in paragraph 1 above, and he does not show “good cause for the failure, ” the Court will dismiss his complaint under Federal Rule of Civil Procedure 4(m).