Opinion
CV-22-00964-PHX-SPL (ASB)
06-16-2023
Crispin Granados, Plaintiff, v. State of Arizona, et al., Defendants.
REPORT AND RECOMMENDATION
Honorable Alison S. Bachus United States Magistrate Judge
The Court is in receipt of Plaintiff's Response to Order to Show Cause, filed June 6, 2023. (Doc. 19.) Plaintiff Crispin Granados, who is confined in the Arizona State Prison Complex-Eyman, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983. (Doc. 1.) In its screening order filed November 22, 2022, the Court ordered Defendant Ruiz to answer Count I of the Complaint and dismissed the remaining claims and defendants without prejudice. (Doc. 9.) In addition, the Court sent Plaintiff the required service packet and ordered Plaintiff to complete and return the service packet within 21 days. (Id.) Plaintiff was warned that if he failed to timely comply with the screening order, the action would be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. (Id.)
On January 27, 2023, the Court issued an order to show cause why the matter should not be dismissed for failure to serve. (Doc. 11.) Plaintiff responded to the order to show cause (Doc. 12), and the Court entered another order with a service packet on March 9, 2023. (Doc. 14.) Plaintiff was provided with another service packet and ordered to complete and return the service packet within 21 days. (Id.) After no service packet was completed and returned, the Court entered another order to show cause on April 13, 2023. (Doc. 15.) On Plaintiff's motion, Plaintiff was given an extension of time to file his Response to the April 13, 2023 Order to Show Cause. (Docs. 16, 17.) Plaintiff was ordered to file his Response within 14 days of the Court's May 22, 2023 Order. (Doc. 17.) On June 6, 2023, Plaintiff filed his Response to the Court's most recent order to show cause. (Doc. 19.) It is against this backdrop that the Court considers the relevant Rules and controlling case law.
Rule 4 of the Federal Rules of Civil Procedure governs service of process. Rule 4(m) sets forth the time limits for service and directs that if a defendant is not served within 90 days after the complaint is filed, the Court, on its own after notice to the plaintiff, “must dismiss the action without prejudice against that defendant or order that service be made within a specified time.” Rule 4(m) continues, “But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.” “At a minimum, ‘good cause' means excusable neglect.” Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991) (analyzing good cause in the context of Rule 4(j)). Further, a plaintiff may “be required to show the following: (a) the party to be served personally received actual notice of the lawsuit; (b) the defendant would suffer no prejudice; and (c) plaintiff would be severely prejudiced if his complaint were dismissed.” Id. (citing Hart v. United States, 817 F.2d 78, 80-81 (9th Cir. 1987). Indeed, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, a district court may dismiss an action due to a plaintiff's failure to prosecute or to comply with court orders. See Link v. Wabash R.R. Co., 370 U.S. 626, 629-30 (1962) (a court's authority to dismiss for lack of prosecution is necessary to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the district courts); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (1992) (a district court may dismiss an action for failure to comply with any order of the court).
Here, Plaintiff was specifically warned that failure to comply with Rule 4 may result in dismissal of his action, and multiple extensions of time for service have been granted. (Docs. 9, 11, and 15.) In his Response to the most recent order to show cause, Plaintiff provides no discernible good cause for failure to serve Defendant Ruiz. (See Doc. 19.) First, Plaintiff contends that he has been denied sufficient medical care. (See id. at 3-5.) He further states that he is disabled, lacks mobility and resources, and does not “know English.” (Id. at 4-6.) Finally, he makes the sweeping assertion that he is subjected to “ongoing harassment, threat's (sic), bad treatment's (sic) constantly, and commiting (sic) violation's (s), violating my civil right's (sic), the correction officer's (sic).” (Id. at 6.) However, Plaintiff fails to provide the Court with any specific, articulable reason why he has not served the remaining defendant in this case. Put another way, Plaintiff does not link any of the above grievances to his failure to timely serve Defendant Ruiz. On the record before it, the Court cannot conclude that Plaintiff has shown “good cause” as defined in Boudette. 923 F.2d at 756. Further, the Court cannot find that Defendant Ruiz has received actual notice of this action and would suffer no prejudice, and the Court cannot find that Plaintiff would be severely prejudiced if his Complaint were dismissed. See id. In sum, the Court finds Plaintiff has failed to prosecute this action as required. Consequently, dismissal of this action under Rule 41(b) is warranted. The Court will recommend that this action be dismissed without prejudice.
The Court notes Plaintiff's Complaint was filed over a year ago, in June 2022.
RECOMMENDATION
IT IS RECOMMENDED that Plaintiff's Complaint (Doc. 1) be dismissed without prejudice, and that the Clerk of Court terminate this action.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have 14 days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to timely file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.