Opinion
CIV-21-1181-R
09-19-2023
JACKIE RAY SHAW, JR., Plaintiff, v. STEVEN BREWER et al., Defendants.
REPORT AND RECOMMENDATION
SHON T. ERWIN, UNITED STATES MAGISTRATE JUDGE
Plaintiff Jackie Ray Shaw, Jr., a state inmate appearing pro se and in forma pauperis, brought this action under 42 U.S.C. § 1983 alleging various violations of his constitutional rights which allegedly occurred while he was housed at Oklahoma County Detention Center. See ECF No. 1.
I. RELEVANT HISTORY
In an Order dated March 29, 2022, the Court adopted the Report and
Recommendation of the undersigned and dismissed all claims except an individual capacity claim pursuant to the Fourteenth Amendment for excessive force against Defendant Steven Brewer. See ECF No. 11. The undersigned entered an Order Requiring Service and Special Report. Mr. Shaw presented service paperwork for Steven Brewer on May 23, 2022, and service appeared to be executed by the filing of return service papers on June 6, 2022. See ECF Nos. 18-22.
On August 5, 2022, John Kim, Counsel for Tommie Johnson, as Sheriff of Oklahoma County, filed a Special Report and Sealed Documents. See ECF Nos. 23 & 26. Mr. Kim did not enter an appearance, but in the Special Report he argued that service was improper because Steven Brewer was no longer employed by Oklahoma County Detention Center, despite the fact that service was apparently accepted by Major James Anderson. See ECF Nos. 22 & 23:2.
On December 16, 2022, the Court ordered the Oklahoma County Detention Center and/or Oklahoma County Sheriff's Office to submit Defendant Steven Brewer's last known addresses to the United States Marshal Service (USMS). On January 10, 2023, a Notice was filed indicating the Oklahoma County Sheriff's Office has provided the USMS the last known address for Defendant Steven Brewer. See ECF No. 29.
On March 30, 2023, Plaintiff was granted additional time to properly serve Defendant Steven Brewer. On April 28, 2023, Plaintiff submitted the necessary service paperwork and the Clerk of Court issued summons and provided all service documents to the USMS for another service attempt on Defendant Steven Brewer. See ECF Nos . 31 & 33. On June 8, 2023, service was again returned unexecuted by the USMS. See ECF No. 34.
On August 15, 2023, Plaintiff was ordered to show good cause in writing, on or before August 31, 2023, as to why all claims raised against Defendant Steven Brewer should not be dismissed. See ECF No. 35.
Plaintiff has now responded by submitting a Letter (ECF No. 36) along with prepared service paperwork for Defendant Steven Brewer utilizing the address provided to the USMS by the Oklahoma County Detention Center and/or Oklahoma County Sheriff's Office. As stated above this address failed to effect service upon Defendant Steven Brewer. See supra. Plaintiff makes no statements or arguments addressing his failure to serve Defendant. Further, Plaintiff has failed to submit valid proof of service nor has a waiver of service been filed, despite multiple extensions of Plaintiff's deadline to accomplish service. As a result, the Court should dismiss this defendant.
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 15 months have elapsed since Plaintiff was ordered to serve Defendant Steven Brewer.
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 this defendant 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 Defendant 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 (quotingEspinoza, 52 F.3d at 841). See Espinoza, 52 F.3d at 842.
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 Defendant Steven Brewer. Here, the Court has determined the first date attributable to Plaintiff's claims is January 7, 2020. Additionally, because Plaintiff timely filed his Complaint, Oklahoma's savings clause would salvage Plaintiff's ability to refile against Defendants. That statute provides:
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
The Court has allowed great lenience when reviewing each of the Plaintiff's submissions and his difficulty in serving this Defendant. However, to date, Plaintiff has not effected service on Defendant Steven Brewer and there is no indication that this 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 this Defendant is not warranted. Plaintiff failed to comply with the Court's orders (ECF Nos. 18, 31 & 35) to serve Defendant Steven Brewer 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 serve Defendant Steven Brewer, 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
Thus, it is recommended that this matter 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 October 6, 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 terminates the referral to the undersigned magistrate judge in the captioned matter.