Opinion
CV-22-00196-PHX-MTL (DMF)
07-28-2022
Michael Travis Patterson, Plaintiff, v. Robert B Patterson, et al., Defendants.
HONORABLE MICHAEL T. LIBURDI, UNITED STATES DISTRICT, JUDGE.
AMENDED REPORT AND RECOMMENDATION
Honorable Deborah M. Fine United States Magistrate Judge.
This matter is on referral to the undersigned for all pretrial proceedings pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure. (Doc. 8 at 3) In early February 2022, Plaintiff Michael Travis Patterson (“Plaintiff”) filed a pro se Complaint. (Doc. 1) Plaintiff has yet to serve any of the Defendants with the Complaint. For the reasons set forth below, it is recommended that all of the unserved Defendants be dismissed without prejudice for failure to timely serve such Defendants.
Citation to the record indicates documents as displayed in the official Court electronic document filing system maintained by the District of Arizona under Case No. CV-22-00196-MTL (DMF).
I. PROCEDURAL HISTORY AND POSTURE
Plaintiff is not incarcerated, and his pro se Complaint relates to various events. In Plaintiff's February 4, 2022, handwritten Complaint, Plaintiff alleges, among other things, that he has suffered a violation of “fair treatment” and the “[b]asic human right not to B [ sic ] carved on in sleep[,]” that he has been “choking on everything” since his arrest in Idaho, that he suffered various incidents while incarcerated in Longview, Texas, and that guards “purposefully los[t] [Plaintiff's] charge sheet[.]” (Doc. 1 at 3-4, 8, 16) Plaintiff names twenty-four Defendants, including Robert B. Patterson; RJ Reynolds; the Texas Department of Justice; the Arizona Department of Corrections; Ronda Pulse; Bell County Jail in Texas; Harla Davison (Commissioner); Judge Beresky; a Yuma, Arizona, prison; Straight Talk Wireless; Cricket Wireless; T-Mobile; Boost Mobile; Select Apt and Community; Maricopa County Jail; Phoenix Police and Fire Departments; an IDEA or “Narcotix” Officer; an unknown Shaw, an employee at Temple VA; Patty Smith; Roy Blair; Rebecca Smith; an unknown Jackson, an employee of the VA in Waco; and “Metro or whoever is responsible my phone working against me.” (Id. at 2, 6)
Contemporaneous to the filing of the Complaint, Plaintiff filed a “Motion to the Majastrate [ sic ] Judge District # 9,” which the Court construed as a Motion for Preliminary Injunction. (Doc. 8 at 1-2) In the motion (Doc. 8), Plaintiff requested an injunction against harassment, time for Plaintiff to put together his case, immunity from any drug offenses, and a request not to prosecute Plaintiff's wife. (Doc. 2 at 1)
On February 14, 2022, this Court ordered Plaintiff to pay the filing fee within thirty days of the Court's Order or file an Application to Proceed Without Prepayment of Fees and Costs. (Doc. 5) The form for an Application to Proceed Without Prepayment of Fees and Costs was mailed to Plaintiff with the Court's Order. (Id.) Plaintiff paid the filing fee and administrative fee in full on March 8, 2022. (Doc. 7)
On April 1, 2022, the Court denied Plaintiff's Motion for Preliminary Injunction without prejudice and ordered that “Plaintiff must either serve each Defendant or seek a waiver of service for each Defendant.” (Doc. 8 at 2) In the April 1, 2022, Order, the Court warned that “[i]f Plaintiff does not either obtain a waiver of service of the summons or complete service of the Summons and Complaint on a Defendant within 90 days of the filing of the Complaint or within 60 days of the filing of this Order, whichever is later, the action may be dismissed as to each Defendant not served. Fed.R.Civ.P. 4(m).” (Id.) The deadline to complete service was therefore on May 31, 2022.
Following the expiration of the time for Plaintiff to either obtain a waiver of service of the summons or complete service of the Summons and Complaint on Defendants, the Court issued an Order to Show Cause on June 9, 2022, ordering that:
within twenty-one (21) days of the date this Order is signed, Plaintiff shall file with the Court waivers or affidavits of service reflecting service of the Complaint or show cause in writing filed with the Court reasons why this action should not be dismissed without prejudice for failure to prosecute and failure to comply with this Court's rules and order.(Doc. 9 at 2)
In Plaintiff's timely and only response to the Order to Show Cause, filed June 14, 2022, Plaintiff stated that he nearly has “to spend all day defending [his] environment and it effecting [ sic ] [his] ability to proceed in a manner exceptable [ sic ] to a court much less a higher one.” (Doc. 10 at 4) Plaintiff alleges that his bank is using him “to launder counterfit [ sic ] and drugs”; that someone has been cutting Plaintiff's throat, stealing Plaintiff's phone service and health care, “gasing” Plaintiff to sleep, carving on Plaintiff's fingers, and placing substances in Plaintiff's food and water; that Plaintiff's apartment walls have a green, translucent polymer on them; that “everyone knows instantly” what Plaintiff does; and that packages throughout town have been “purchased through mobile app stolen from [Plaintiff's] phone and posted on sign all over town[.]” (Id. at 2-5) Plaintiff alleges that people have intentionally poisoned Plaintiff for twenty years and are now robbing Plaintiff. (Id. at 5) Plaintiff states that he wishes to “pass forward [his] $ for case and statements to anyone who wishes them and has experienced these thing[s.]” (Id. at 6) Nowhere in the seven-page handwritten filing does Plaintiff present steps he has taken or plans to take to effectuate service.
The time to comply with the Court's Order to Show Cause expired on June 30, 2022. Since his June 14, 2022, filing (Doc. 10), Plaintiff has neither obtained a waiver of service of the summons nor completed service of the Summons and Complaint on any of the Defendants. Plaintiff has not made any filings in this matter since his June 14, 2022, filing.
II. DISCUSSION
The issue is whether to grant Plaintiff an extension of time to serve Defendants pursuant to Fed.R.Civ.P. 4(m) or whether to dismiss unserved Defendants without prejudice for failure to serve. A federal court does not have “personal jurisdiction over a defendant unless the defendant has been served in accordance with Fed.R.Civ.P. 4.” Travelers Cas. & Sur. Co. of America v. Brenneke, 551 F.3d 1132, 1135 (9th Cir. 2009) (internal quotation marks and citations omitted). Rule 4(m) provides that:
[i]f 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 plaintiff-must dismiss the action without prejudice against that defendant or order that service must 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. This subdivision (m) does not apply to service in a foreign country under Rule 4(f), 4(h)(2), or 4(j)(1), or to service of a notice under Rule 71.1(d)(3)(A).Fed. R. Civ. P. 4(m). A “plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service.” Fed.R.Civ.P. 4(c)(1).
There are “two avenues for relief' from the time limit in Rule 4(m). Lemoge v. United States, 587 F.3d 1188, 1198 (9th Cir. 2009). The first, which is “mandatory,” requires a district court to “extend time for service upon a showing of good cause.” Id. (citing In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001)). Under the second, which is discretionary, “if good cause is not established, the district court may extend time for service upon a showing of excusable neglect.” Id. Although the Ninth Circuit has not “articulate[d] a specific test that a court must apply in exercising its discretion under Rule 4(m),” Sheehan, 253 F.3d at 513, a Court may consider factors such as “a statute of limitations bar, prejudice to the defendant, actual notice of a lawsuit, and eventual service.” Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007).
A. The Record Does Not Establish Good Cause for a Mandatory Extension of Time
“At a minimum, good cause means excusable neglect[,]” but three factors may be considered to determine if there is good cause for an extension of time to effectuate service: “(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.” Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991) (applying former Rule 4(j) establishing a 120-day time limit for service).
Here, Plaintiff has not shown excusable neglect, and nothing in the record suggests that the parties to be served have received actual notice of Plaintiff's lawsuit. Defendants have not been served with process, have not made an appearance before the Court, and have not contacted the Court in any manner. Accordingly, neither excusable neglect nor factor (a) supports a finding of good cause. As for factor (b), any prejudice to Defendants would be minor. The loss of “a quick victory” is not prejudicial. Bateman v. United States Postal Service, 231 F.3d 1220, 1225 (9th Cir. 2000).
As for factor (c), “[a] dismissal for untimely service is required to be a dismissal without prejudice[,]” thereby allowing a “plaintiff to refile the complaint and effect timely service.” United States v. 2,164 Watches, More or Less, Bearing a Registered Trademark of Guess?, Inc., 366 F.3d 776, 773 n.2 (9th Cir. 2004). If a plaintiff cannot refile a complaint due to a statute of limitations, however, dismissal would severely prejudice a plaintiff. See, e.g., Trueman v. Johnson, 2011 WL 6721327, at *4 (D. Ariz. Dec. 21, 2011). Because “Section 1983 does not include its own statute of limitations ... federal courts apply the statute of limitations governing personal injury claims in the forum state.” Finkle v. Ryan, 174 F.Supp.3d 1174, 1186 (D. Ariz. 2016). In Arizona, where Plaintiff alleges the events in his Complaint took place in part, the statute of limitations “for personal injury claims is two years.” Id. Likewise, in Texas and Idaho, where Plaintiff alleges certain additional events in his Complaint occurred, the statute of limitations for personal injury actions is two years. Mornes v. Valdez, 414 F.Supp.3d 888, 891 (N.D. Tex. 2019) (stating Texas statute of limitations); Olsen v. Idaho State Bd. Of Medicine, 363 F.3d 916, 926 (9th Cir. 2004) (stating Idaho statute of limitations). Although Plaintiff occasionally refers to the passage of time in his Complaint, Plaintiff provides no concrete dates during which the alleged incidents in his Complaint occurred. (Doc. 1) Without dates, the Court cannot determine whether dismissal would bar Plaintiff from refiling his Complaint.
Further, Plaintiff has not provided the Court with any plans he has made to effectuate service of any Defendant. The Court has no confidence that an extension of time will result in service of any Defendant.
Accordingly, the Court finds that good cause for an extension of time to serve does not exist on the record before the Court. Thus, an extension of time to serve is not mandatory.
B. A Discretionary Extension of Time is Unwarranted
Where good cause does not exist, the Court may grant a discretionary extension of time for Plaintiff to serve Defendants with the Complaint. The Court has “broad” but not limitless “discretion to extend time for service under Rule 4(m).” Efaw, 473 F.3d at 1041. In deciding whether to extend the time for service, “a district court may consider factors ‘like a statute of limitations bar, prejudice to the defendant, actual notice of a lawsuit, and eventual service.'” Id. (quoting Troxell v. Fedders of N. Am., Inc., 160 F.3d 381, 383 (7th Cir. 1998)).
As discussed above, the Complaint's lack of concrete dates makes it unclear whether a statute of limitations would bar Plaintiff from refiling his Complaint. Further, Defendants would suffer minimal prejudice if the Court were to allow Plaintiff an extension of time to serve the Complaint upon Defendants. Nevertheless, Defendants have had no actual notice of Plaintiff's lawsuit, and no Defendant has yet been served. Plaintiff has not set forth efforts made to serve any of the Defendants, and Plaintiff has not provided the Court with any plans he has made to effectuate service of any Defendant. The Court has no confidence that an extension of time will result in service of any Defendant.
As explanation for Plaintiff's delay, Plaintiff states that he nearly has “to spend all day defending [his] environment and it effecting [ sic ] [his] ability to proceed in a manner exceptable [ sic ] to a court much less a higher one.” (Doc. 10 at 4) Plaintiff has demonstrated his ability to timely comply with orders from this Court. Plaintiff paid the filing and administrative fee within 30 days of the Court's February 14, 2022, Order (Docs. 5, 7), and filed a response to the Court's Order to Show Cause within five days of the Court's entry of that order. (Docs. 9, 10)
Under the circumstances before the Court at this time, Plaintiff is not entitled to a discretionary extension of time to serve Defendants.
III. CONCLUSION
Because Plaintiff has not served any of the Defendants, Plaintiff has not shown adequate cause for his failure to do so, and the record does not establish adequate cause to grant Plaintiff an extension of time for service, it is recommended that Plaintiff's claims against all of the unserved Defendants be dismissed for failure to serve pursuant to Fed.R.Civ.P. 4(m).
Accordingly, IT IS RECOMMENDED that all of the unserved Defendants be dismissed without prejudice for failure to timely serve such Defendants pursuant to Fed.R.Civ.P. 4(m).
IT IS FURTHER RECOMMENDED that the Clerk of Court be directed to terminate this matter if all of the Defendants remain unserved at the time the Court dismisses the unserved Defendants.
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) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen 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, 72. The parties shall have fourteen days within which to file responses to any objections. Failure to file timely 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 file timely objections to any factual determination of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.