Opinion
Case No. 8:19-cv-754-T-60AAS
08-02-2019
DARIUS VASHON TOLBERT, Plaintiff, v. PATRICK SCRUGGS, et al., Defendants.
ORDER
Darius Vashon Tolbert, an incarcerated individual proceeding pro se, moves for an extension of time to serve the defendants. (Doc. 22).
Mr. Tolbert filed his complaint on March 28, 2019. (Doc. 1). The plaintiff must serve the defendant within ninety days after the complaint is filed. Fed. R. Civ. P. 4(m). So, Mr. Tolbert's deadline to serve the defendants was June 27, 2019. He failed to timely serve the defendants.
A July 5th order gave Mr. Tolbert until July 25, 2019, to serve the defendants or show cause in writing why this action should not be dismissed because of his failure to serve the defendants. (Doc. 7). On July 23rd, Mr. Tolbert submitted a motion for extension of time to serve the defendants. (Doc. 9). Mr. Tolbert requests additional time to serve the defendants and states that his wife is "hiring a service processor to effect service this week." (Doc. 9).
Since he submitted his motion for extension of time, Mr. Tolbert submitted a return of service against defendant Patrick Scruggs. (Doc. 12). Mr. Tolbert filed no returns of service against other defendants.
A court must extend the time for service if the plaintiff establishes good cause. Fed. R. Civ. P. 4(m); see also Fed. R. Civ. P. 6(b)(1)(A) (stating the court may, for good cause, grant extensions of time requested "before the original time or its extension expires").
In cases involving pro se plaintiffs, courts have discretion to liberally construe the good-cause requirement under Rule 4(m). See Kelly v. Humphrey-Barnett, 100 F.3d 963, 1996 632800, at *1 (9th Cir. 1996) (unpublished) (citation omitted) (stating courts give latitude to pro se prisoner litigants under Rule 4(m)); see also Espinoza v. United States, 52 F.3d 838, 842 (10th Cir. 1995) (stating courts should consider the complex service requirements of Rule 4(i) when deciding whether to grant a permissive extension of time under Rule 4(m)).
Mr. Tolbert demonstrates diligent efforts to serve the defendants. Since the July 5th order, he served one of the defendants: Patrick Scruggs. Therefore, Mr. Tolbert establishes good cause for extending the time by which he must serve the remaining defendants. The following is ORDERED:
1. Mr. Tolbert's motion for extension of time (Doc. 9) is GRANTED.
2. By September 6, 2019, Mr. Tolbert must properly serve the remaining defendants. His failure to timely serve the defendants might result in a dismissal of his claims against the remaining defendants.
ENTERED in Tampa, Florida, on August 2, 2019.
/s/_________
AMANDA ARNOLD SANSONE
United States Magistrate Judge cc: Tolbert Darius Vashon (via U.S. mail)