Opinion
CV-21-01353-PHX-GMS (DMF)
07-28-2022
Brandon Allen McDermott, Plaintiff, v. Anna L Moreno, et al., Defendants.
TO THE HONORABLE G. MURRAY SNOW, CHIEF UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
HONORABLE DEBORAH M. FINE UNITED STATES MAGISTRATE JUDGE
This matter is on referral to the undersigned for all pretrial proceedings pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure. (Doc. 11 at 9-10) On August 4, 2021, Plaintiff Brandon Allen McDermott (“Plaintiff”), who is confined in a Maricopa County Jail, filed a pro se Complaint. (Doc. 1) Plaintiff filed a First Amended Complaint on August 25, 2021. (Doc. 7)
For the reasons set forth below, it is recommended that the sole remaining defendant, Defendant Ramos, be dismissed without prejudice for Plaintiff's failure to timely return an adequate service packet to effectuate service of the Summons and First Amended Complaint on Defendant Ramos or otherwise serve Defendant Ramos.
I. PROCEDURAL HISTORY AND POSTURE
Plaintiff is incarcerated in a Maricopa County Jail, and his pro se First Amended Complaint relates to various events that occurred during Plaintiff's incarceration. Plaintiff initiated this action in August 2021. (Doc. 1) In Count One of the handwritten First Amended Complaint (Doc. 7), Plaintiff alleges “that on September 1, 2020, while housed in the Arizona State Prison Complex-Lewis, Defendant Ramos placed him in a cell ‘with another population,' and ‘allowed the inmate to strike [Plaintiff] while in cuffs several times before taking [Plaintiff] back out of [the] cell.'” (Doc. 11 at 3) Plaintiff alleged two additional counts for relief and named five defendants in the First Amended Complaint: Anna Moreno, Bryan Evans, C.O. II Braveheart, C.O. II Ramos, and Sergeant Hirst. (Doc. 7 at 1-2)
In the Court's Screening and Service Order filed October 1, 2021, the Court granted Plaintiff's Application to Proceed In Forma Pauperis, ordered Defendant Ramos to answer Count One of the First Amended Complaint, and dismissed the remaining counts and defendants of Plaintiff's First Amended Complaint. (Id. at 1-6) The Court directed the Clerk of Court to send Plaintiff a service packet, including summons and request for waiver forms for Defendant Ramos (id. at 8), and instructed that:
(9) 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.
(10) If Plaintiff does not either obtain a waiver of service of the summons or complete service of the Summons and First Amended Complaint on Defendant Ramos 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.) The deadline to complete service was therefore on November 30, 2021. In the October 1, 2021, Order, the Court warned Plaintiff that if he “fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992).” (Id. at 7)
After Plaintiff timely returned the service packet, the United States Marshal attempted service. The United States Marshal was unable to serve Defendant Ramos due to Plaintiff's failure to identify the correct Defendant Ramos in the service packet. (Doc. 16) Specifically, the unexecuted service packet filed with the Court on November 15, 2021, stated that “ASPC Lewis needs additional info. There are 4 Ramos who work there, need first name or badge #.” (Id.) The following week, the Court instructed the Clerk of Court to send Plaintiff an additional service packet and ordered that “[t]he completed service packet as to Defendant Ramos shall include a first name and/or a badge number.” (Doc. 17 at 1-2) The Court ordered that Plaintiff must complete and return the service packet to the Clerk of Court within twenty-one days and extended the time for Plaintiff to complete service for sixty days following the entry of the Court's November 22, 2021, Order. (Id. at 2)
On December 22, 2021, after Plaintiff moved for a court-appointed investigator (Doc. 18), the Court “reiterate[d] that it is Plaintiff's responsibility to obtain pertinent information to prosecute his claim” and instructed the Clerk of Court to send Plaintiff a blank subpoena duces tecum packet. (Doc. 20)
Upon Plaintiff's subsequent motion for an extension of time to serve Defendant Ramos (Doc. 22), the Court extended the time to serve Defendant Ramos for an additional sixty days from January 24, 2022. (Doc. 23) Plaintiff did not return the service packet as to Defendant Ramos.
On March 31, 2022, the Court issued an Order to Show Cause and ordered that “Plaintiff shall, within fourteen (14) days from the date of this Order, return the service packet as to Defendant Ramos, to include a first name and/or badge number or show cause in writing filed with the Court why the claims against Defendant Ramos should not be dismissed for failure to comply with Court orders.” (Doc. 24 at 2)
In late April 2022, Plaintiff responded to the Court's Order to Show Cause and stated that he was unable to acquire Defendant Ramos' name due to being placed on suicide watch. (Doc. 25) In a second Order to Show Cause issued on May 3, 2022, and resetting to May 24, 2022, the deadline to return the completed service packet for Defendant Ramos or show cause in writing why the claim against Defendant Ramos should not be dismissed for failure to comply (Doc. 26), the Court reminded Plaintiff that:
it is Plaintiff's responsibility and not the Court's or the United States Marshal's Office to obtain accurate information for service. Neither the Court nor the United States Marshal may conduct investigation on Plaintiff's behalf (Doc. 17). Thus, Plaintiff's response to the Order to Show Cause is insufficient. Nevertheless, the Court will afford Plaintiff a final opportunity regarding returning a viable service packet as to Defendant Ramos. [...]
If Plaintiff does [not] comply or the Court finds Plaintiff's response to the Order to Show Cause insufficient, Plaintiff is warned that dismissal without prejudice of this action is likely.(Id. at 2-3)
Plaintiff filed six notices (Docs. 27, 28, 29, 30, 31, 32) and a motion for extension of time to acquire Defendant Ramos' name and badge number. (Doc. 33) The Court granted Plaintiff's motion to extend time on May 25, 2022, and allowed Plaintiff an additional twenty-one days from the date of the Court's Order. (Doc. 34) Plaintiff moved for an additional extension of time on June 2, 2022 (Doc. 35), and the Court denied Plaintiff's motion on June 6, 2022, as lacking good cause. (Doc. 38)
Plaintiff thereafter filed nine additional notices and a motion for Court assistance in relation to the Court's Order to Show Cause. (Docs. 39, 40, 43, 44, 45, 46, 47, 48, 49, 50) On July 15, 2022, the Court denied Plaintiff's request for assistance (Doc. 45) and reminded Plaintiff that:
it is his responsibility to obtain service information for Defendant Ramos. The Court's docket reflects that Plaintiff has accomplished numerous written filings and mailings throughout this litigation, with mailing through Inmate Legal Services of the Maricopa County Sheriff's Office. Despite this avenue to obtain service information, Plaintiff has decided not to send any writing to find the first name or badge number of Defendant Ramos (see Doc. 48 at 2 “trying to contact [the Lewis facility] by mail will probably be fruitless”). Further, in December 2021, the Court provided Plaintiff with the applicable General Order and associated form documents for seeking a subpoena from this Court directed to obtain the required service information (Doc. 20). Yet, Plaintiff has failed to make any attempt to use this avenue to obtain the required service information.(Doc. 51 at 2)
The time to comply with the Court's Order to Show Cause expired on June 15, 2022. (See Doc. 34) Although Plaintiff has filed multiple notices with the Court since the Court's May 25, 2022, Order extending the time for Plaintiff to show cause, Plaintiff has not returned the service packet as to Defendant Ramos and has neither obtained a waiver of service of the summons nor completed service of the Summons and Complaint on Defendant Ramos.
II. DISCUSSION
The issue before the Court is whether to grant Plaintiff an extension of time to return the service packet with sufficient information for the United States Marshal to again attempt to effectuate service or whether to dismiss Defendant Ramos without prejudice due to Plaintiff's failure to timely return a sufficient service packet or otherwise effectuate service of the Summons and Complaint. A federal court does not have “personal jurisdiction over a defendant unless the defendant has been served in accordance with Fed.R.Civ.P. 4.” Travelers Cas. & Sur. Co. of America v. Brenneke, 551 F.3d 1132, 1135 (9th Cir. 2009) (internal quotation marks and citations omitted). Rule 4(m) provides that:
[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 must 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. This subdivision (m) does not apply to service in a foreign country under Rule 4(f), 4(h)(2), or 4(i)(1), or to service of a notice under Rule 71.1(d)(3)(A).Fed. R. Civ. P. 4(m).
Where an incarcerated, pro se plaintiff is proceeding in forma pauperis, the United States Marshal Service (“USMS”) may serve the summons and complaint. Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990); see also 28 U.S.C. § 1915(d). There is good cause to extend the time for service where an incarcerated, pro se plaintiff proceeding in forma pauperis provides sufficient information for service to the USMS but the USMS fails to effect service. Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995)). If the plaintiff, however, does not provide sufficient information for the USMS to effect service, the Court may sua sponte dismiss the unserved defendant. Id. The Court may not assist a plaintiff in locating a defendant. See Pliler v. Ford, 542 U.S. 225, 231 (2004) (“District judges have no obligation to act as counsel or paralegal to pro se litigants.”).
There are “two avenues for relief” from the time limit in Rule 4(m). Lemoge v. United States, 587 F.3d 1188, 1198 (9th Cir. 2009). The first, which is “mandatory,” requires a district court to “extend time for service upon a showing of good cause.” Id. (citing In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001)). Under the second, which is discretionary, “if good cause is not established, the district court may extend time for service upon a showing of excusable neglect.” Id. Although the Ninth Circuit has not “articulate[d] a specific test that a court must apply in exercising its discretion under Rule 4(m),” Sheehan, 253 F.3d at 513, a Court may consider factors such as “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).
A. The Record Does Not Establish Good Cause for a Mandatory Extension of Time
“At a minimum, good cause means excusable neglect[,]” but three factors may be considered to determine if there is good cause for an extension of time to effectuate service: “(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) (applying former Rule 4(j) establishing a 120-day time limit for service).
Here, Plaintiff has not shown excusable neglect, and nothing in the record suggests that the party to be served has received actual notice of Plaintiff's lawsuit. Defendant Ramos has not been served with process, has not made an appearance before the Court, and has not contacted the Court in any manner. Accordingly, neither excusable neglect nor factor (a) supports a finding of good cause. As for factor (b), any prejudice to Defendant Ramos would be minor. The loss of “a quick victory” is not prejudicial. Bateman v. United States Postal Service, 231 F.3d 1220, 1225 (9th Cir. 2000).
As for factor (c), “[a] dismissal for untimely service is required to be a dismissal without prejudice[,]” thereby allowing a “plaintiff to refile the complaint and effect timely service.” United States v. 2,164 Watches, More or Less, Bearing a Registered Trademark of Guess?, Inc., 366 F.3d 776, 773 n.2 (9th Cir. 2004). If a plaintiff cannot refile a complaint due to a statute of limitations, however, dismissal would severely prejudice a plaintiff. See, e.g., Trueman v. Johnson, 2011 WL 6721327, at *4 (D. Ariz. Dec. 21, 2011). Because “Section 1983 does not include its own statute of limitations ... federal courts apply the statute of limitations governing personal injury claims in the forum state.” Finkle v. Ryan, 174 F.Supp.3d 1174, 1186 (D. Ariz. 2016). In Arizona, where Plaintiff alleges the events in his Complaint took place in part, the statute of limitations “for personal injury claims is two years.” Id. The event underlying Plaintiff's claim against Defendant Ramos occurred on September 1, 2020. (Doc. 11 at 3) The statute of limitations on Plaintiff's claim therefore does not expire until September 1, 2022, allowing Plaintiff to refile his Complaint following dismissal of the present action.
Further, despite having various tools available for use to obtain the required information for effectuating service, Plaintiff has not provided the Court with any plans he has made to obtain such information or otherwise effectuate service of Defendant Ramos. The Court has no confidence that an extension of time will result in Plaintiff's return of a sufficient service packet or service of Defendant Ramos.
Accordingly, the Court finds that good cause does not exist on the record before the Court. Thus, an extension of time for Plaintiff to return an adequate service packet or otherwise serve Defendant Ramos is not mandatory.
B. A Discretionary Extension of Time is Unwarranted
Where good cause does not exist, the Court may grant a discretionary extension of time for Plaintiff to serve Defendant Ramos with the Complaint. The Court has “broad” but not limitless “discretion to extend time for service under Rule 4(m).” Efaw, 473 F.3d at 1041. In deciding whether to extend the time for service, “a district court may consider factors ‘like a statute of limitations bar, prejudice to the defendant, actual notice of a lawsuit, and eventual service.'” Id. (quoting Troxell v. Fedders of N. Am., Inc., 160 F.3d 381, 383 (7th Cir. 1998)).
As discussed above, no statute of limitations bars Plaintiff from refiling his Complaint. Although Defendant Ramos has not received actual notice of Plaintiff's lawsuit, Defendant Ramos would suffer minimal prejudice due to an extension of time for Plaintiff to serve the Complaint. Plaintiff has not set forth efforts made to serve Defendant Ramos, and Plaintiff has not provided the Court with any plans he has made to effectuate service of Defendant Ramos. The Court has no confidence that an extension of time will result in Plaintiff's return of a sufficient service packet or service of Defendant Ramos.
As explanation for Plaintiff's delay, Plaintiff argues that Plaintiff's mail is being intercepted (Doc. 39 at 2, Doc. 43 at 2, Doc. 48 at 2, Doc. 49 at 1-2), that the Arizona Department of Corrections Lewis Complex will not answer Plaintiff's calls (Docs. 40, 43), that Plaintiff has run out of stamps (Doc. 43 at 2), that Plaintiff's calls are being blocked (Doc. 44, Doc. 47 at 3), that the “civilians” Plaintiff calls provide “wrong information due to threats and at other times bribes” (Doc. 48 at 2), and that the Maricopa County Sheriff's Office “is not allowing [Plaintiff] to make calls to the public they are patching [Plaintiff] thru [ sic ] to former employees and other[s]” (Doc. 52 at 1-2).
Despite Plaintiff's arguments, Plaintiff has shown his ability to send mail through his multiple notices and motions filed with the Court. Although the Court instructed the Clerk of Court to send Plaintiff a subpoena packet (Doc. 20), Plaintiff has not utilized this subpoena packet to obtain the name and badge number of Defendant Ramos. Further, Plaintiff has the opportunity to contact the Arizona Department of Corrections Lewis Complex by mail but has apparently chosen not to do so, as Plaintiff states that “trying to contact Lewis by mail will probably be fruitless[.]” (Doc. 48 at 2) Plaintiff has also demonstrated his ability to make phone calls through statements in his notices. (See, e.g., Docs. 47, 48) The Court has reminded Plaintiff that he has numerous tools available to obtain the required service information (Doc. 51 at 2), yet Plaintiff has not utilized these tools to obtain the necessary information. Plaintiff bears the ultimate responsibility to obtain sufficient information for the USMS to serve Defendant Ramos but has not done so despite the extended period of time Plaintiff has been allotted to obtain the required information. See Walker, 14 F.3d at 1422.
Under the circumstances before the Court at this time, Plaintiff is not entitled to a discretionary extension of time to return an adequate service packet for Defendant Ramos or otherwise serve Defendant Ramos with the Summons and First Amended Complaint.
III. CONCLUSION
Plaintiff has not returned an adequate service packet for Defendant Ramos or otherwise served Defendant Ramos with the Summons and First Amended Complaint, Plaintiff has not shown cause for his failure to do so, and the record does not establish adequate cause to grant Plaintiff an extension of time to effectuate service of the Summons and First Amended Complaint on Defendant Ramos. Therefore, it is recommended that Defendant Ramos be dismissed for Plaintiff's failure to timely return an adequate service packet to effectuate service of the Summons and First Amended Complaint on Defendant Ramos or otherwise serve Defendant Ramos.
Accordingly, IT IS RECOMMENDED that Defendant Ramos be dismissed without prejudice due to Plaintiff's failure to timely return an adequate service packet to effectuate service of the Summons and First Amended Complaint on Defendant Ramos or otherwise serve Defendant Ramos
IT IS FURTHER RECOMMENDED that the Clerk of Court be directed to terminate this matter.
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) of the Federal Rules of Appellate Procedure 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. The parties shall have fourteen days within which to file responses to any 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. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determination 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 Fed.R.Civ.P. 72.