Opinion
CV-21-00998-PHX-MTL (JZB)
11-17-2023
Bryan Colters, Plaintiff, v. Maricopa County Jail, et al., Defendants.
REPORT AND RECOMMENDATION
HONORABLE JOHN Z. BOYLE, UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE MICHAEL T. LIBURDI, UNITED STATES DISTRICT JUDGE:
On its own motion, this Court recommends this action be dismissed for Plaintiff's failure to timely serve the Defendant pursuant to Fed.R.Civ.P. 4(m) and for failure to comply with this Court's orders pursuant to Fed.R.Civ.P. 41(b).
I. Background
On June 7, 2021, Plaintiff, who was not in custody, filed a prisoner civil rights complaint (the “Complaint”) against the “Maricopa County Jail,” Sheriff Penzone, and a “Deputy Barking.” (Doc. 1.) The Court granted Plaintiff's application to proceed in forma pauperis and, after screening the Complaint, dismissed the Maricopa County Jail and Sheriff Penzone. (Doc. 5 at 1-5.) The Court ordered Defendant Barking to answer in his individual capacity. (Doc. 5 at 7.) The Court further ordered Plaintiff to serve Defendant Barking pursuant to the Federal Rules of Civil Procedure. (Id.)
On July 7, 2021, the Clerk received Plaintiff's service packet for Defendant Barking, and, on July 13, 2021, that service packet was forwarded to the United States Marshals (“USMS”) for service. On August 12, 2021, the service packet was returned as improperly completed, and a new service packet was completed and forwarded to the USMS for service. (See Doc. 8.)
On September 2, 2021, the USMS filed notice that service of Defendant Barking was returned unexecuted. (Doc. 7.) In the remarks section of the Process Receipt and Return, the agent noted, “Returned Unexecuted. Waiver declined. Unable to identify Officer Barking.” (Id.) On September 15, 2021, the Court then ordered Plaintiff to either (1) provide a current address for Defendant Barking, (2) return to the Court a completed subpoena and USM-285 form directed at the Maricopa County Sheriff's Office seeking information to assist with identifying Defendant Barking, or (3) otherwise show cause why Plaintiff's claims against Defendant Barking should not be dismissed for failure to effect service on or before October 15, 2021. (Doc. 8.) The Court further ordered the Clerk to provide Plaintiff with a blank subpoena to fill out and return to the Court for service. (Id.)
Plaintiff did not meet the deadline, but on October 25, 2021, filed a motion “requesting the Court grant pretrial discovery” with a completed, attached subpoena for documents. (Doc. 9.) Plaintiff sought “the incident report which would show the name of the officer who assaulted [him.]” (Id.) On December 1, 2021, the Court, construing the motion as a motion for issuance of the proposed subpoena, granted that request (doc. 10), and on December 6, 2021, a subpoena was served wherein Plaintiff requested “the incident reports from his physical assault by Barkings [ sic ], and all documents attached to [his] entake [ sic ] at the facility[,]” (doc. 11).
On December 29, 2021, Sheriff Penzone filed his Notice of Compliance. (Doc. 12.) Sheriff Penzone advised, however, that there is no employee working for the Maricopa County Sheriff's Office with the name “Barkings” and, after an extensive search, that MCSO was unable to find any records related to the Plaintiff being incarcerated on the date referenced in the subpoena. (Id.) Plaintiff took no further action for over six months.
Plaintiff designated the date and time for production of the documents as October 28, 2021. (Doc. 11 at 2.) It appears Counsel for MCSO interpreted this as the date of the incident report Plaintiff was seeking. (Doc. 12.) In any case, the MCSO eventually located the April 16, 2021 incident report and furnished it to Plaintiff in December 2022. (Doc. 21.)
On July 14, 2022, Plaintiff filed a Motion to Compel Defendants to Answer and for sanctions, which the Court denied. (Docs. 14 and 15.) On July 15, 2022, the Court ordered that “on or before July 29, 2022, Plaintiff must show cause why this action should not be dismissed for failure to comply with Rule 4(m) of the Federal Rules of Civil Procedure.” (Doc. 13.) On July 27, 2022, Plaintiff filed his response to the Court's Order to show cause wherein he requested an opportunity to serve a second subpoena. (Doc. 16.) On August 16, 2022, the Court granted Plaintiff's request and ordered the subpoena to be completed and returned “on or before September 6, 2022.” (Doc. 17.)
The Court received the completed subpoena on October 17, 2022-41 days after the deadline. On November 2, 2022, Sheriff Penzone was served the subject subpoena. (Doc. 18.) The subpoena requested “all information from booking number T694549 from the date of 4/13/2021 [to] 4/15/2022.” (Doc. 18.) On November 10, 2022, defense counsel moved to quash the subpoena due to untimeliness and based on the breadth of the information sought. (Doc. 19.) On December 6, 2022, the Court granted this motion, in part. (Doc. 20.) The Court narrowed the focus of the subpoena to include only documents from between April 13, 2021, to April 15, 2021, and directed Sheriff Penzone to produce the documents by December 23, 2022. (Doc. 20 at 5.) The Court further directed Plaintiff to provide a current working address for Defendant Barking on or before January 6, 2023, or otherwise show cause why the action should not be dismissed. (Id.) Plaintiff was further warned that failure to comply with the Court's order could also result in dismissal under Rule 41(b). (Id•)
After a search, the County was finally able to confirm that there was an incident involving Plaintiff that occurred on April 16, 2021. (Doc. 21.) On December 22, 2022, the County timely disclosed documents dated through April 16, 2021. (Id.) Plaintiff still did not follow this Court's order that he provide an address for Defendant Barking or show cause to avoid dismissal on or before January 6, 2023. Instead, Plaintiff waited until April 10, 2023-three months after the deadline-to file a “Motion for Status Update and Motion to Amend Complaint Due to Plaintiff Has the Correct Information.” (Doc. 22.) Plaintiff requested the status of this action and for an opportunity to amend his Complaint. (Id.)
On June 5, 2023, the Court denied Plaintiff's Motion to Amend for failure to attach a proposed amended complaint, but permitted Plaintiff to file a renewed motion to amend with an attached amended complaint within 21 days. (Doc. 26.) On July 5, 2023, Plaintiff filed another Motion to Amend, noting that he “received the officer name and information at a late time . . . his name is Officer Perkins #B4555[.]” (Doc. 28.) On August 29, 2023, this Court denied the Motion to Amend, but construed it as a motion to substitute “Officer Perkins #B4555” for Officer Barking, who had never been identified or served. (Doc. 30.) The Court ordered the Clerk to send the Plaintiff a service packet and ordered the Plaintiff to return it within 21 days. (Doc. 30 at 2.) 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 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. Fed.R.Civ.P. 4(m); LRCiv 16.2(b)(2)(B)(ii).” (Id. at 3.)
Plaintiff never returned the service packet. On September 27, 2023, the Court issued an Order to Show Cause why Plaintiff's action should not be dismissed for failure to comply with the Court's prior order. (Doc. 31.) The Court allowed Plaintiff until October 12, 2023 to comply. (Id.) The Court received service documents, including a summons still directed to Officer Barking, on October 6, 2023. (Doc. 32.) The Clerk returned these documents to the Plaintiff due to an insufficient address and because they were prepared for a Defendant who was dismissed or not named. (Doc. 33.) Plaintiff has not returned a corrected service packet for Officer Perkins. In over 29 months since the commencement of this action, Plaintiff has not served the lone remaining Defendant.
II. Analysis
a. Rule 4(m)
In the June 17, 2021 initial screening order, the Court explained the following:
(5) The Clerk of Court must send Plaintiff a service packet including the Complaint (Doc. 1), this Order, and both summons and request for waiver forms for Defendant Barking.
(6) Plaintiff must complete and return the service packet to the Clerk of Court within 21 days of the date of filing of this Order. The United States Marshal will not provide service of process if Plaintiff fails to comply with this Order.
(7) If Plaintiff does not either obtain a waiver of service of the summons or complete service of the Summons and Complaint on 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. Fed.R.Civ.P. 4(m); LRCiv 16.2(b)(2)(B)(ii).(Doc 5. at 7.)
The Court later cautioned Plaintiff regarding the potential dismissal of his lawsuit for failure to serve or failure to follow Court orders in orders dated July 15, 2022 (doc. 13 at 3), August 29, 2023 (doc. 30 at 3), and September 27, 2023 (doc. 31).
The Court also warned Plaintiff in an order dated June 5, 2023, that failure to file a renewed motion to amend and proposed amended complaint within 21 days “will likely result in dismissal of this action;” (Doc. 26 at 2.)
Rule 4(m) of the Federal Rules of Civil Procedure requires that service be completed within 90 days of the date the complaint was filed:
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.
Good cause to avoid dismissal may be demonstrated by establishing, at minimum, excusable neglect. See Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991). In addition to excusable neglect, a plaintiff may be required to show the following factors to bring the excuse to the level of good cause: “(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.” Id.Lemoge v. United States, 587 F.3d 1188, 1198 n. 3 (9th Cir. 2009).
For plaintiffs proceeding in forma pauperis, the Court must “order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court.” Fed.R.Civ.P. 4(c)(3). “So long as the [plaintiff] has furnished the information necessary to identify the defendant, the marshal's failure to effect service ‘is automatically good cause within the meaning of Rule 4[(m)].'” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Sellers v. U.S., 902 F.2d 598, 603 (7th Cir. 1990) (overruled on other grounds by Sandin v. Conner, 515 U.S. 472, 483-84 (1995)). However, “it remains Plaintiff['s] responsibility to provide the Marshals with accurate and sufficient information to effect service.” Pember v. Ryan, No. CV-11-2332-PHX-SMM, 2014 WL 3397735, at *2 (D. Ariz. July 11, 2014) (citations omitted). “The Court is not required to act as an investigative body in ascertaining a correct address for [a d]efendant.” Id. (citations omitted); DeRoche v. Funkhouser, No. CV 06-1428-PHX-MHM (MEA), 2008 WL 4277659, at *1 (D. Ariz. Sept. 16, 2008) (“[N]either the Marshal Service nor the Court may engage in investigatory efforts on behalf of the parties to a lawsuit as this would improperly place the Court in the role of an advocate.”) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)); see also, Pliler v. Ford, 542 U.S. 225, 231 (2004) (federal “judges have no obligation to act as counsel or paralegal to pro se litigants.”).
Even if a plaintiff fails to show good cause, the district court may also, in its discretion, “extend time for service upon a showing of excusable neglect.” Lemoge, 587 F.3d at 1198. To determine whether there is excusable neglect, the Court considers: (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. PioneerInv. Servs. Co. v. BrunswickAssocs. Ltd., 507 U.S. 380, 395 (1993); Briones v. Riviera Hotel & Casino, 116 F.3d 379 (9th Cir. 1997).
Here, the initial deadline for serving the lone remaining Defendant expired in September 2021-over two years ago. The Court has extended this deadline and other litigation deadlines several times. (E.g., Doc. 13 at 3 (ordering Plaintiff to show cause within two weeks why the matter should not be dismissed for failure to serve), Doc. 20 at 5 (granting Plaintiff 30 days to provide Defendant Barking's working address or show cause why the action should not be terminated for failure to serve), Doc. 30 at 2-4 (granting Plaintiff 21 days to complete and return a service packet for substituted Defendant Officer Perkins and 60 days from the filing of the order to effect service), Doc. 31 at 2-3 (granting Plaintiff two weeks to return the aforementioned service packet or show cause why the action should not be dismissed)). The Court has issued no fewer than four orders directing Plaintiff to show cause why this action should not be dismissed for failure to effect service on Defendant or failure to follow Court orders. (See Docs. 8, 13, 20, 31.) To date, the docket reflects that Defendant Perkins, whom the Court substituted for Defendant Barking at Plaintiff's request (doc. 30 at 2), has not been served. Plaintiff has not shown that service of Defendant Perkins is likely, or even possible in this instance, or that excusable neglect justifies Plaintiff's failure to serve.
Moreover, Plaintiff has exhibited little regard for the Court's deadlines, having violated them egregiously on several occasions.Most recently, the Court ordered Plaintiff to return a completed service packet for Defendant “Officer Perkins #B4555” on or before October 12, 2023, or show cause why this matter should not be dismissed. (Doc. 31.) On October 6, 2023, Plaintiff submitted a service packet still addressed to Officer Barking, despite the Court's order substituting Defendant “Officer Perkins #B4555” for Officer Barking. (Doc. 32.) The Clerk of Court returned these documents to Plaintiff on October 6, 2023, noting an insufficient address and incorrect Defendant. (Doc. 33.) The docket reflects Plaintiff has taken no action to remedy the defective service packet, and the deadline has expired. In over 29 months since the commencement of this action, the Defendant has not been served. Because Defendant Perkins is the only remaining defendant, this Court will recommend dismissal of all claims without prejudice. Fed.R.Civ.P. 4(m).
For example, on July 27, 2022, Plaintiff responded to an Order to Show Cause and requested an opportunity to serve a second subpoena. (Doc. 16.) The Court granted the request and ordered the subpoena be completed and returned on or before September 6, 2022. (Doc. 17.) The Court did not receive the completed subpoena until October 17, 2022, and the subpoena was not served until November 2, 2022. (Doc. 18.) On December 6, 2022, the Court ordered Plaintiff to notify of a current address for Defendant Barking on or before January 6, 2023. (Doc. 20.) On April 10, 2023, Plaintiff filed a motion for status and leave of court to amend. (Doc. 22.)
b. Rule 41(b)
Plaintiff's action against Defendant Perkins may also be dismissed under Rule 41(b) of the Federal Rules of Civil Procedure for failure to comply with this Court's Orders. Rule 41(b) provides that “[i]f the plaintiff fails to comply with these rules or any order of court, a defendant may move to dismiss the action or any claim against it.” In Link v. Wabash Railroad Co., 370 U.S. 626, 629-31 (1962), the Supreme Court recognized that a federal district court has the inherent power to dismiss a case sua sponte for failure to prosecute. Moreover, in appropriate circumstances, the Court may dismiss a complaint for failure to prosecute even without notice or a hearing. See id. at 633.
In determining whether Plaintiff's failure to prosecute warrants dismissal of the case, the Court must weigh the following five factors: “(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). “The first two of these factors favor the imposition of sanctions in most cases, while the fourth cuts against a default or dismissal sanction. Thus the key factors are prejudice and availability of lesser sanctions.” Wanderer v. Johnson, 910 F.2d 652, 656 (9th Cir. 1990).
Here, the first, second, and third factors favor dismissal of Defendant Perkins from this case. Plaintiff's failure to either effect service on Defendant Perkins or to adequately respond to the Court's Orders to Show Cause, as directed, prevents the case from proceeding against Defendant Perkins in the foreseeable future.The fourth factor, as always, weighs against dismissal. The fifth factor requires the Court to consider whether a less drastic alternative is available. The Court has already ordered Plaintiff to return a service packet for Defendant Perkins or show cause why this matter should not be dismissed. (Doc. 31.) Plaintiff failed to complete a service packet for Defendant Perkins.
Plaintiff failed to timely reply to this Court's September 15, 2021 Order to Show Cause. (Doc. 8-9.) In the Court's December 6, 2022 Order to Show Cause, Plaintiff was directed to provide an address for Defendant Barking on or before January 6, 2023. (Doc. 20.) Plaintiff did not file anything until April 10, 2023, when he motioned for a status update and for leave to amend. (Doc. 22.) On September 28, 2023, the Court ordered Plaintiff to return a completed service packet for Officer Perkins on or before October 12, 2023. (Doc. 31.) Plaintiff's service packet was defective, and he has filed nothing in response.
The Court finds that only one less drastic sanction is realistically available. Rule 41(b) provides that a dismissal for failure to prosecute operates as an adjudication upon the merits “[u]nless the dismissal order states otherwise.” In this case, the Court finds that a dismissal with prejudice would be unnecessarily harsh. Therefore, the Court will recommend dismissal of this action against Defendant Perkins without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
III. Conclusion and Recommendation
Accordingly, IT IS RECOMMENDED Plaintiff's claims be dismissed without prejudice for failure effect timely service pursuant to Fed.R.Civ.P. 4(m) and for failure to follow this Court's orders under Fed.R.Civ.P. 41(b).
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. The parties shall have 14 days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections. Failure to timely file 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 timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed.R.Civ.P. 72.