Opinion
CV-23-0294-PHX-DWL (JFM)
07-03-2024
Laquint Henry Lee Cherry, Plaintiff v. Paul Penzone, et al., Defendants.
REPORT & RECOMMENDATION
JAMES F. METCALF UNITED STATES MAGISTRATE JUDGE
A. REPORT AND RECOMMENDATION
This matter is before the undersigned magistrate judge on referral for pretrial proceedings pursuant to 28 U.S.C. § 636(b)(1). Because the appropriate resolution of this matter is dispositive of claims or defenses, the undersigned proceeds by way of a Report & Recommendation to the referring district judge, pursuant to 28 U.S.C. § 636(b)(1)(B).
B. DISCUSSION
The Court's screening and service Order directed service on Defendants Davison, Jacobson, Redfern, and Divine. It further found that the Third Amended Complaint adequately stated claims against Defendants Officers John Doe 1 through 7. (Order 12/8/23, Doc. 34.) Plaintiff has completed service on Defendants Redfern and Divine, who have now answered (Doc. 78).
In an Order filed February 8, 2024 (Doc. 47) the Court granted Plaintiff's “Discovery Motion” (Doc. 46) and directed the Maricopa County Sheriff's Office to provide responses concerning the identification of and service addresses for fictitiously named or inadequately identified defendants to assist Plaintiff in naming and serving such defendants. (Order 2/8/24, Doc. 47.) The Sheriff's Office responded (Docs. 69, 70, 71), providing available service information for the named defendants and additional information on persons reflected in the relevant incident reports, and service information.
In an Order filed February 29, 2024 (Doc. 73), the Court ordered renewed attempts at service on the named defendants (Jacobson and Davison) and declined to order service on the fictitiously named defendants until Plaintiff filed a motion for service packets identifying the names of his intended defendants, which was due within 14 days. (Order 2/29/24, Doc. 73.) That deadline expired long ago and Plaintiff failed to file motions for service packets. The Order gave Plaintiff through April 29, 2024 (60 days) to complete service on the unserved defendants.
In an Order filed March 11, 2024 (Doc. 79) the Court extended the service packet and notices of substitution deadlines to March 25, 2024.
Regarding Defendants Unknown Officers John Doe 1 through 7, Plaintiff has never filed notices of substitution. Plaintiff did return service packets seeking service on a series of previously unnamed officers. The Court declined to direct service based on these packets because: (1) Plaintiff had not filed notices of substitution to identify (and thus had not identified which name was ascribed to which defendant); (2) no addresses for service were provided; and (3) multiple defendants had been joined in a single service packet. (Order 3/27/24, Doc. 95.) Plaintiff has yet to file notices of substitution for these defendants, or otherwise take any apparent action to name or complete service on them. Thus it appears Plaintiff is failing to prosecute as to these defendants. Moreover, his time to serve such defendants expired on April 29, 2024. (See Order 2/29/24, Doc. 73.)
Regarding Defendant Officer Davison, service at the sealed address was returned unexecuted on March 13, 2024 (Doc. 82). On March 21, 2024, Plaintiff then filed a motion seeking discovery regarding an address for Defendant Davison, and an extension of two months (presumably to complete service on Davison). On March 27, 2024 the motion was denied without prejudice because Plaintiff failed to identify any potential sources for an address for service, and no reason to believe such discovery requests would be fruitful. (Order 3/27/24, Doc. 95.) On March 28, 2024, Plaintiff filed a partially illegible “Discover Motion And More [illegible] Time Motion” (Doc. 96). The Court liberally construed this filing as a request to subpoena Davison's personnel file and denied it without prejudice for failure to attach a proposed subpoena as required by the Court's Scheduling Order, and failure to identify a reason to believe such discovery would disclose a more current address for Davison. The Court, however, extended Plaintiff's time to complete service on Davison through May 10, 2024. (Order 3/29/24, Doc. 98.) Plaintiff has undertaken no further apparent action to complete service on Davison, and the time to complete service on Davison expired on May 10, 2024.
Regarding Defendant Officer Jacobson, Plaintiff's original attempt at service was returned unexecuted because there were multiple officers who shared the same last name, the only information provided by Plaintiff. (Doc. 40.) MCSO provided an identity for an Officer Jacobson (“Jacobson, N #B4029”) and reported that he could be served at “MCSO's Legal Liaison Section located at 550 W. Jackson Street, Phoenix, AZ 85003.” On March 21, 2024, Plaintiff returned a new service packet for Jacobson, but failed to identify that address, or any address for Jacobson. At best, the packet listed Plaintiff's return address as “MCSO deputies jail.” The Court declined to direct service attempts based on the packet and again cautioned Plaintiff that the “U.S Marshals Service will not attempt service without an address for service.” (Order 3/27/24, Doc. 95.) Plaintiff has not completed service on Defendant Jacobson, and the time to do so expired on April 29, 2024. (See Order 2/29/24, Doc. 73.)
In an Order filed May 21, 2024 (Doc. 118) the Court ordered Plaintiff to show cause why the unserved defendants should not be dismissed for failure to effect timely service. A response was due by May 31, 2024. None has been filed.
Application of Law to Facts - Federal Rule of Civil Procedure 4(m) provides:
If 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 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.
Dismissal of a party is appropriate where a plaintiff fails to show good cause for delays in service. See Walker v. Sumner, 14 F.3d 1415 (9th Cir. 1994) (upholding dismissal where no showing of good cause for delay in service).
At a minimum, "good cause" means excusable neglect. A plaintiff may also 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.Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir.1991). Plaintiff has offered no cause for his delays in pursuing service.
Notwithstanding Rule 4(m), where "good cause does not exist, the court may in its discretion decide whether to dismiss the case without prejudice or extend time for service." Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298, 1305 (3rd Cir. 1995). "[I]f good cause is not established, the district court may extend time for service upon a showing of excusable neglect." Lemoge v. U.S., 587 F.3d 1188, 1198 (9th Cir. 2009).
To determine whether a plaintiff demonstrates excusable neglect, courts use the test set forth in Pioneer Inv. Services Co. v. Brunswick Assoc. Ltd., 507 U.S. 380, 394 (1993), and Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir.1997). See Lemoge, 587 F.3d at 1198 (holding that plaintiff had established excusable neglect for the purposes of Rule 4(m) via the Pioneer-Briones test). The Pioneer-Briones test is as follows:
[T]he determination of whether neglect is excusable is an equitable one that depends on at least four factors: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings, (3) the reason for the delay; and (4) whether the movant acted in good faith.Bateman v. U.S. Postal Service, 231 F.3d 1220, 1223-1224 (9th Cir.2000). Here, all but the last factor call for a finding of no excusable neglect.
Danger of Prejudice to Unserved Defendant - The unserved defendants, if eventually served, would be brought into litigation in which all deadlines either are expired or soon will be. For example, under the current scheduling order, the discovery requests deadline expires July 19, 2024, and the dispositive motions deadline is August 13, 2024. (Order 3/12/24, Doc. 80.) Prejudice to the new defendant would mirror the prejudice to the existing defendants, whose cases would be ready to proceed to dispositive motion and/or trial by the time a new defendant were added and served.
Length of Delay and Impact - Almost seven months have elapsed since the original service order. (Order 12/8/23, Doc. 34.) To extend the time for service, and to introduce a new defendant would effectively mean resetting the schedule in this case. This case is already over 16 months old, the extended times for service (April 29, 2024 and May 10, 2024) expired approximately two months ago, and the case is nearing completion, with the extended discovery and motions deadlines are about to expire.
Reason for Delay - Plaintiff's fitful attempts at naming and pursuing service on these defendants do not demonstrate diligence, nor provide sufficient reason to explain the extent of the delay. Rather, much of the delay is attributable to simple neglect.
Plaintiff's filings persistently reference his mental illness. However, the Court has repeatedly found no basis to appoint counsel, observing that Plaintiff has managed to file two complaints with claims that survived screening, and some 27 motions (eight of which have been granted). (See Orders at Docs. 13, 34, 65, 79, 83, 121, 124.)
Good faith - There appears no reason to conclude that Plaintiff has acted in bad faith, as opposed to simply being dilatory.
Summary - Plaintiff has failed to show good cause or excusable neglect to justify an extension of time to complete service on the unserved defendants.
C. RECOMMENDATIONS
IT IS THEREFORE RECOMMENDED that, pursuant to Rule 4(m), Defendants Jacobson, Davison, and Unknown Officers John Doe 1 through 7 be DISMISSED WITHOUT PREJUDICE.
D. EFFECT OF RECOMMENDATION
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.
However, pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”