Opinion
CV- 22-02079-PHX-ROS (ESW)
02-09-2024
David Wayne Lummus, Petitioner, v. David Shinn, et al., Respondent.
REPORT AND RECOMMENDATION
Eileen S. Willett United States Magistrate Judge
TO THE HONORABLE ROSLYN O. SILVER, SENIOR UNITED STATES DISTRICT JUDGE:
This is a civil rights action filed by Arizona state prisoner David Wayne Lummus (“Plaintiff”) pursuant to 42 U.S.C. § 1983. On November 15, 2023, the Court issued an Order (Doc. 71) requiring Plaintiff to show cause by November 28, 2023 why this action should not be dismissed as to Defendant Weigel for failure to timely effect service of process. As of the date of this Report and Recommendation, no response has been filed.
I. DISCUSSION
Under Federal Rule of Civil Procedure 4(m), “[i]f 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.” However, “if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.” Id.
As the Ninth Circuit Court of Appeals has explained, “Rule 4(m) requires a two-step analysis in deciding whether or not to extend the prescribed time period for the service of a complaint.” In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001) (citing Fed.R.Civ.P. 4(m) and Petrucelli v. Bohringer & Ratzinger, GMBH, 46 F.3d 1298, 1305 (3d Cir. 1995)). “First, upon a showing of good cause for the defective service, the court must extend the time period. Second, if there is no good cause, the court has the discretion to dismiss without prejudice or to extend the time period.” Id. The Ninth Circuit has found it “unnecessary, however, to articulate a specific test that a court must apply in exercising its discretion under Rule 4(m),” noting “only that, under the terms of the rule, the court's discretion is broad.” Id. at 513. Yet “no court has ruled that the discretion is limitless. In making extension decisions under Rule 4(m) a district court may consider factors ‘like a statute of limitations bar, prejudice to the defendant, actual notice of a lawsuit, and eventual service.'” Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007) (emphasis added).
In this case, the Court gave Plaintiff the opportunity to show good cause why Defendant Weigel should not be dismissed from this action. Plaintiff did not respond to the Court's Order to Show Cause (Doc. 71). It is not the Court's role to assist in obtaining Defendant Weigel's address. See Bias v. Moynihan, 508 F.3d 1212, 1219 (9th Cir. 2007) (“A district court lacks the power to act as a party's lawyer, even for pro se litigants”).
Dismissal without prejudice is appropriate under these circumstances. The undersigned recommends that the Court dismiss Defendant Weigel from this action without prejudice for failure to timely serve and prosecute pursuant to Rules 4(m) and 41(b) of the Federal Rules of Civil Procedure.
II. CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that the Court dismiss Defendant Weigel without prejudice for Plaintiff's failure to timely effect service.
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely 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. Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); Robbins v. Carey, 481 F.3d 1143,1146-47 (9th Cir. 2007).