Opinion
No. CIV-17-1024-D
10-26-2018
GLEN FOLSOM, Plaintiff, v. CHANDA GRICE, Defendant.
FOURTH SUPPLEMENTAL REPORT AND RECOMMENDATION
Plaintiff, a state prisoner who appears pro se and in forma pauperis, filed his initial Complaint in this 42 U.S.C. § 1983 civil rights action on September 25, 2017. Doc. No. 1. United States District Judge Timothy D. DeGiusti referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). On September 24, 2018, the undersigned issued an Order directing Plaintiff to show cause as to why this case should not be dismissed based on his failure to serve Defendant Chanda Grice. Doc. No. 75. On October 11, 2018, Plaintiff filed a response to the Order. Doc. No. 76. For the reasons set forth herein, the undersigned recommends this action be dismissed without prejudice.
I. Background Information
In this action, Plaintiff asserts a First Amendment retaliation claim against Defendant Grice, formerly employed as a nurse at James Crabtree Correctional Center ("JCCC"). He alleges that Defendant Grice falsely accused Plaintiff of misconduct because Plaintiff had reported to prison officials that Defendant Grice's friend, a fellow JCCC employee, had sexually harassed him.
This is the second lawsuit in which Plaintiff has asserted this claim against Defendant Grice. In 2013, Plaintiff initiated a lawsuit in this Court under 42 U.S.C. § 1983 against Defendant Grice and nine other individuals alleging they violated his First, Eighth, and Fourteenth Amendment rights. Folsom v. Knutson, et. al., Case No. 13-CIV-632-D. Eight of the defendants were properly served and moved to dismiss for failure to state a claim upon which relief could be granted. The Court ultimately granted Defendants' motion, dismissing all of Plaintiff's claims except his retaliation claim against Defendant Grice in her individual capacity.
Plaintiff's claims against another unserved Defendant were dismissed on screening. Case No. 13-CIV-632-D, Doc. No. 192.
On September 21, 2016, after multiple extensions of time allowing Plaintiff to serve Defendant Grice, this Court dismissed his claim against her without prejudice for his failure to serve her. On September 25, 2017, Plaintiff filed the current lawsuit re-asserting his retaliation claim.
Plaintiff's Complaint was submitted for mailing on September 20, 2017. Doc. No. 21 at 4.
II. Plaintiff's Attempts to Serve Defendant Grice in 2013 Lawsuit
In Plaintiff's previous lawsuit, after discovering Defendant Grice was no longer employed at JCCC, the Court ordered JCCC officials to provide the United States Marshal Service ("USMS") Defendant Grice's last known address. Case No. CIV-13-0632, Doc. Nos. 107, 111-13. When the USMS attempted service of process at said address, the Marshal discovered it was no longer Defendant Grice's address and was therefore unable to complete service. Case No. CIV-13-0632, Doc. Nos. 113, 116. Specifically, the Marshal went to the address provided and spoke with the couple who resided there. Case No. CIV-13-0632, Doc. Nos. 119, 120. The couple explained that they had lived there over one year and were not familiar with Defendant Grice. Id. The Marshal checked the identification of the individuals to ensure they were not Defendant Grice. Id.
After the failed attempts to obtain service with the assistance of USMS, Plaintiff requested leave to serve Defendant Grice by publication pursuant to Okla. Stat. tit. 12, § 2004(c)(3)(a). Case No. 13-CIV-632-D, Doc. No. 121. In July 2015, the Court informed Plaintiff that he did not need the Court's permission to attempt to serve Defendant Grice by publication. Case No. 13-CIV-632-D, Doc. No. 150. In February 2016, following Plaintiff's purported difficulty in utilizing the funds in his account to accomplish service by publication, the Court again extended Plaintiff's service deadline for Defendant Grice to April 1, 2016, and provided explicit instructions on the proper procedure to serve a party by publication. Case No. 13-CIV-632-D, Doc. No. 198. Citing the applicable state statute, the Court explained to Plaintiff that the Summons by Publication Notice must appear one day each week, for three consecutive weeks, in a legal newspaper that is published in the county where the Complaint is filed. Id.
In May 2016, Plaintiff submitted a Proof of Publication to the Court. Case No. 13-CIV-632-D, Doc. No. 216. However, Plaintiff had failed to comply with the Oklahoma statute because the Notice had only been published one time. Case No. 13-CIV-632-D, Doc. No. 221. Additionally, Plaintiff had published the Notice in a newspaper in Alfalfa County, Oklahoma, rather than Oklahoma County, where the lawsuit was filed. Id.
Following Plaintiff's failure to properly serve Defendant Grice by publication, Magistrate Judge Charles B. Goodwin concluded that in light of the "multiple extensions, explanations of the relevant statutes and rules, and the assistance of the USMS . . . [t]he Court must recognize that service is Plaintiff's responsibility, he has not accomplished service on Ms. Grice, and the matter must be put to a reasonable close." Id. at 12. Judge Goodwin recommended dismissal of Plaintiff's claim against Defendant Grice without prejudice, noting that Oklahoma's savings statute would likely allow Plaintiff to file a new action against Defendant Grice within one year of dismissal. Id. at 12 (citing Okla. Stat. tit. 12, § 100 ("If any action is commenced within due time, and . . . if the plaintiff fail[s] in such action otherwise than upon the merits, the plaintiff . . . may commence a new action within one (1) year after the . . . failure although the time limit for commencing the action shall have expired before the new action is filed."). On September 21, 2016, the Court adopted Judge Goodwin's recommendation, dismissing Plaintiff's claim against Defendant Grice without prejudice. Case No. 13-CIV-632-D, Doc. No. 223.
III. Plaintiff's Attempts to Serve Defendant Grice in Current Lawsuit
As noted, Plaintiff initiated the current lawsuit in September 2017, asserting the same First Amendment claim against Defendant Grice as he previously asserted in 2013. Doc. No. 1. On January 3, 2018, the undersigned entered an Order Requiring Service and Special Report. Doc. No. 26. The Order directed Plaintiff to serve a copy of the Order, a copy of the Complaint, and a summons upon Defendant Grice in accordance with Fed. R. Civ. P. 4. Id. at 3. To accomplish service, Plaintiff was directed to complete and furnish to the Court Clerk the necessary service papers within 21 days of the date of the Order. Id. The Court further explained that because Plaintiff is proceeding in forma pauperis, service would be accomplished by the USMS after Plaintiff provided the Court Clerk with the necessary service papers. Id.
On March 16, 2018, the Court Clerk noted in the docket in this matter that Plaintiff had submitted all necessary service papers except the summons form. Thus, the Court Clerk mailed another copy of the Summons to Plaintiff. Meanwhile, the time-period during which Plaintiff was to serve Defendant Grice expired. On June 5, 2018, the Court extended Plaintiff's deadline to effect service, providing Plaintiff another opportunity to submit the necessary service papers to the Court Clerk and directing Plaintiff to complete service of process on Defendant Grice no later than July 20, 2018. Doc. No. 51.
Plaintiff subsequently submitted ambiguous service papers to the Court in which he provided both the address of JCCC, Defendant Grice's former employer based on his contention that she was working there again, and a purported home address for Defendant Grice. Doc. No. 57. The USMS attempted service at JCCC and the Summons was returned unexecuted indicating Defendant Grice was no longer an employee and that JCCC was unable to forward the same. Doc. No. 62.
On August 2, 2018, the Court issued an Order explaining the problems created by Plaintiff's previously submitted service papers that included multiple addresses for Defendant Grice. Doc. No. 65. The Court again extended Plaintiff's deadline to effect service, providing him yet another opportunity to complete service of process. Id. The Court directed Plaintiff to complete service of process on Defendant Grice no later than September 17, 2018. Id.
On August 27, 2018, the Service of Summons for Defendant Grice was returned unexecuted. Doc. No. 69. The United States Marshal who attempted service indicated that the residential address Plaintiff provided was inaccurate and that the resident at the purported address had lived there for approximately five years. Id.
On September 24, 2018, this Court issued an Order directing Plaintiff to show cause no later than October 22, 2018, as to why this case should not be dismissed based on Plaintiff's failure to timely serve Defendant Grice. Doc. No. 75. In the Order, the undersigned noted that in the latest Summons Plaintiff submitted, he indicated that if the address he provided for Defendant Grice was incorrect, the Court and/or the USMS should conduct research to ascertain Defendant Grice's address in order to effectuate service. The undersigned explained in the Order that even though Plaintiff appears pro se, he is responsible for serving Defendant with a summons and a complaint. See Fed. R. Civ. P. 4(c)(1); DeCesare v. Stuart, 12 F.3d 973, 980 (10th Cir. 1993) (recognizing that even though plaintiff was pro se he was "obligated to follow the requirements of Fed. R. Civ. P. 4"); Nichols v. Schmidling, No. 10-2086-JAR, 2012 WL 10350, at *2 (D. Kan. Jan. 3, 2012) (noting that if a court or the USMS is "unable to effectuate service . . . with the information . . . provided, the onus remains upon [the pro se] plaintiff to discover and submit sufficient information for service of all defendants he has named in [his] lawsuit." (quotations omitted)). See also Harper v. Woodward Cty. Bd. of Cty. Comm'rs, No. CIV-11-996-HE, 2016 WL 4493846, at *2 n.3 (W.D. Okla. May 17, 2016) ("'Although [the plaintiff] proceeds in forma pauperis, it is neither the role nor the responsibility of the Court or the [USMS] to investigate the whereabouts or to locate parties to a lawsuit.'" (quoting Franks v. Waite, No. 04-3396-SAC, 2009 WL 640777, at *1 (D. Kan. Mar. 11, 2009)). Nevertheless, Plaintiff responded to the Order on October 11, 2018, arguing, inter alia, that the USMS and/or the Court is responsible for locating Defendant Grice in order to effectuate service.
IV. Dismissal of Plaintiff's Current Lawsuit
A 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, a court may dismiss the action against an unserved defendant without prejudice. Fed. R. Civ. P. 4(m). Here, over one year has elapsed since Plaintiff filed his Complaint and nine months have passed since the undersigned authorized service. 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, 12 F.3d at 980. Thus, Plaintiff's failure to complete proper service on Defendant Grice within the time limits prescribed by Fed. R. Civ. P. 4(m) is grounds for dismissal of his claim against her in the absence of justification for the failure. Jones v. Frank, 973 F.2d 872, 873-74 (10th Cir. 1992).
The preliminary inquiry under Rule 4(m) is to determine whether a plaintiff has shown good cause for his failure to timely effect service. Espinoza v. United States, 52 F.3d 838, 841 (10th Cir. 1995). Here, Plaintiff has not shown good cause for his failure to timely serve Defendant Grice. As detailed above, the undersigned has provided Plaintiff multiple extensions and opportunities to serve Defendant Grice. Nevertheless, Plaintiff has failed to effect service for close to one year since service was authorized. Instead, Plaintiff's repeated refrain to this Court is that, due to his pro se status, it is the responsibility of the USMS or the Court to locate Defendant Grice for service. Doc. Nos. 69, 76.
While not only incorrect, as discussed above, Plaintiff's position is all the more unreasonable when considering that he is well aware there are other means of effecting service available, such as publication. Yet, Plaintiff has not attempted to utilize those means. Instead, in spite of the undersigned's explicit Orders explaining to Plaintiff that service is his responsibility, he continues to demand the Court or the USMS locate Defendant Grice for him. Accordingly, the undersigned concludes good cause does not exist warranting another extension of time to serve Defendant Grice. See In re Kirkland, 86 F.3d 172, 176 (10th Cir. 1996) ("Pro se litigants must follow the requirements of [Rule 4(m) and] inadvertence or negligence alone does not constitute 'good cause' for failure of timely service." (citation omitted)). Nevertheless, the Court must still consider whether a permissive extension of time to serve him is warranted in light of several factors. Espinoza, 52 F.3d at 841-42.
Specifically, the Tenth Circuit Court of Appeals has noted that a permissive extension of time may be warranted "if the applicable statute of limitations would bar the refiled action," or where "policy considerations might weigh in favor of granting a permissive extension of time . . . ." Id. at 842 (quotations omitted). Additionally, as to pro se litigants, "[t]he district court should also take care to protect pro se plaintiffs from consequences of confusion or delay attending the resolution of an in forma pauperis petition." Id. at 842 n.8 (quotation omitted).
At this juncture, an additional permissive extension of time is not warranted. As was true when Plaintiff's 2013 lawsuit was dismissed, the two year statute of limitations for Plaintiff's 42 U.S.C. § 1983 claim has expired. Mondragon v. Thompson, 519 F.3d 1078, 1082 (10th Cir. 2008); Okla. Stat. tit. 12, § 95. Unlike at the time of dismissal in Plaintiff's previous lawsuit, however, the Oklahoma's savings statute, see Okla. Stat. tit. 12, § 100, will not allow Plaintiff to file a new action against Defendant Grice within one year of dismissal because the savings statute "affords one and only one refiling if a case is dismissed after limitations has run." Hull v. Rich, 854 P.2d 903, 904 (Okla. 1993) (citing U.S. v. Swyden, 53 P.2d 284, 288 (Okla. 1936)). This circumstance weighs against dismissal, but does not prohibit it. See, cf., Mosier v. Alexander, No. CIV-05-1068-R, 2006 WL 2193604, at *11 (W.D. Okla. Aug. 1, 2006) (finding that "[e]ven if the two-year statute of limitations would bar Plaintiff's refiled claims . . . this factor alone does not" require the court to refrain from recommending dismissal).
The Court has provided Plaintiff with multiple opportunities both in this case and in the 2013 lawsuit to properly serve Defendant Grice and he has failed to do so. Indeed, in the current case, he has essentially refused. While the Tenth Circuit cautions protecting pro se plaintiffs from consequences of confusion or delay, see Espinoza, 52 F.3d at 842, protecting pro se plaintiffs from their willful refusal to comply with Court orders and/or serve parties against whom they have asserted legal claims is neither warranted nor prescribed by precedent. Cf., Mosier, supra. As this Court previously recognized in 2013, "service is Plaintiff's responsibility . . . . [H]e has not accomplished service on Defendant Grice, and the matter must be put to a reasonable close." Case No. 13-CIV-632-D, Doc. No. 221 at 12 (citing Herrera v. Zavares, 09-cv-01229-MSK-KLM, 2010 WL 3853312, at *14 (D. Colo. Sept. 28, 2010) ("Much as the train must eventually leave the station with those aboard-and leave behind those who have not arrived on time-this litigation began moving forward against those Defendants that [Plaintiff] was able to promptly serve, and [this Defendant] was not among them.")). Accordingly, the undersigned recommends dismissal of Plaintiff's claim against Defendant Grice.
RECOMMENDATION
Based on the foregoing findings, it is recommended that Plaintiff's action be dismissed without prejudice. Plaintiff is advised of his right to file an objection to this Fourth Supplemental Report and Recommendation with the Clerk of this Court by November 15th , 2018, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this Fourth Supplemental Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.").
This Fourth Supplemental Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter.
Dated this 26th day of October, 2018.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE