Opinion
Case No. CIV-20-631-D
01-29-2021
J.C. BERRY, Plaintiff, v. SCOTT CROW, et al., Defendants.
REPORT AND RECOMMENDATION
Plaintiff, a state prisoner appearing pro se, brings this action under 42 U.S.C. § 1983 seeking damages for alleged violations of his constitutional rights during his incarceration by the Oklahoma Department of Corrections. (Doc. 1). Plaintiff also asserts claims under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. (Id.) Chief United States District Judge Timothy D. DeGiusti referred the matter to Magistrate Judge Suzanne Mitchell for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 6). That referral was transferred to the undersigned Magistrate Judge on October 23, 2020. (Doc. 17). The undersigned recommends dismissal of this action without prejudice to the refiling for failure to effect service on the Defendants.
The court construes Plaintiff's pro se filings liberally. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Citations to a court document are to its electronic case filing designation and pagination. Quotations are verbatim unless indicated.
I. Discussion
Plaintiff filed his Complaint on July 2, 2020. (Doc. 1). He appears in forma pauperis, without prepayment of fees or costs. (Docs. 2, 7). On October 15, 2020, Magistrate Judge Mitchell issued an Order Requiring Service and Special Report. (Doc. 15). The Order provided, in part, that:
(8) Plaintiff must serve this order, the complaint, and a summons on each Defendant in accordance with Fed. R. Civ. P. 4. The court clerk shall send Plaintiff the necessary service papers. Plaintiff must complete the forms, and, within twenty (20) days from this order's date, furnish those papers to the court clerk for processing and issuance. Because Plaintiff has been granted in forma pauperis status, he must also provide the court clerk with sufficient copies of the complaint so the United States Marshals Service may attempt service on each Defendant. Service must be complete within ninety (90) days from this order's date; failure to achieve service within that time frame could result in the court dismissing the action.(Id. at 2-3). The Court Clerk promptly mailed to Plaintiff a copy of the Order along with forms requesting issuance of summons for 13 defendants. On November 5, 2020, Plaintiff requested an additional eight days to return the forms to the court. (Doc. 19). The undersigned granted Plaintiff an extension to November 20, 2020. (Doc. 20). To date, Plaintiff has taken no further action towards achieving service of summons and the Complaint on the Defendants. Service was to be complete by January 13, 2021. (Doc. 15, at 2-3).
Plaintiff is required to serve Defendants with a summons and a copy of his complaint. Fed. R. Civ. P. 4(c)(1). The court must, on its own motion, dismiss the action without prejudice against an unserved defendant if such service is not made within 90 days after the filing of the complaint. Fed. R. Civ. P. 4(m). This court's October 15, 2020 order gave Plaintiff 90 days to complete service from the date that order was issued rather than the date the Complaint was filed. (Doc. 15, at 2-3). Yet Plaintiff has failed to establish service in this case. Indeed, he has failed even to return to the court the papers necessary for issuance of summons. Plaintiff has not requested an additional extension of time or otherwise advanced any argument that there is good cause for his failure to have timely effected service. Accordingly, an extension of time is not mandated. See Fed. R. Civ. P. 4(m); Espinoza v. United States, 52 F.3d 838, 841 (10th Cir. 1995).
The court must nonetheless consider whether a permissive extension of time is warranted. Espinoza, 52 F.3d at 841. Considering the factors relevant to this determination, the undersigned notes that the statute of limitations has not expired as to the majority of Plaintiff's claims. See id. at 842 ("'[R]elief may be justified . . . if the applicable statute of limitations would bar the refiled action.'") (quoting Fed. R. Civ. P. 4(m) advisory committee's note (1993)). It appears from the docket and Plaintiff's motion for extension of time (Doc. 19) that he received the court's order (Doc. 15) and the necessary service papers from the Court Clerk, as well as the order granting his motion for extension of time (Doc. 20). Plaintiff has not attempted to serve the Defendants, and Plaintiff has not named as a defendant a federal official such that he is "faced with 'the complex requirements of multiple service' under Rule 4(i)." Espinoza, 52 F.3d at 842. Additionally, there is no indication that any Defendant has attempted to evade service of process. Accordingly, the undersigned finds that a permissive extension of time to effect service of process upon the Defendants is not warranted.
Plaintiff's claims are subject to a two-year statute of limitations. See Alexander v. Oklahoma, 382 F.3d 1206, 1212 n.1 (10th Cir. 2004) (applying state's two-year statute of limitations to § 1983 actions); see Rhodes v. Langston Univ., 462 F. App'x 773, 780 (10th Cir. 2011) (applying state's two-year statute of limitations to claims under the ADA). In his two claims, construed liberally, Plaintiff alleges various and ongoing violations beginning with his transfer on either July 10 or 16, 2018, from the Lawton Correctional Facility to the James Crabtree Correctional Center and continuing through February 13, 2020. (Doc. 1, at 7, 8, 11). Plaintiff seeks solely monetary damages. (Id. at 11).
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 this court's order, combined with the court's attempt to manage and control its caseload, warrant 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, a review of the court file reflects that Plaintiff has failed to serve summons and the Complaint on any Defendant within 90 days of the court's October 15, 2020 order, that Plaintiff has failed to show good cause why he has not done so, and that neither a mandatory or permissive extension of time to effect service are warranted. Thus, in accordance with Fed. R. Civ. P. 4(m), it is recommended that the cause of action be dismissed without prejudice.
II. Recommendation and Notice of Right to Object.
Based on the foregoing, it is recommended that the court dismiss this action without prejudice to refiling. The undersigned advises Plaintiff of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before February 19, 2021, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The undersigned further advises Petitioner that failure to file a timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge unless and until the matter is re-referred.
ENTERED this 29th day of January, 2021.
/s/_________
AMANDA MAXFIELD GREEN
UNITED STATES MAGISTRATE JUDGE