Opinion
CV-21-01593-PHX-JAT (ESW)
05-04-2022
Steven Sentre Merchant, Plaintiff, v. Unknown Smith, et al., Defendants.
REPORT AND RECOMMENDATION
Honorable Eileen S. Willett, United States Magistrate Judge
TO THE HONORABLE JAMES A. TEILBORG, SENIOR UNITED STATES DISTRICT JUDGE:
Plaintiff Steven Sentre Merchant, who is confined in the Arizona State Prison Complex-Lewis, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1). The Court screened Plaintiff's Complaint and ordered Defendants Smith and Calvin to answer Counts One and Three (Doc. 7 at 5). Defendant Smith filed his Answer on February 4, 2022 (Doc. 9).
Service of process was returned unexecuted as to Defendant Calvin (Doc. 12). On Nov. 11, 2021, the Court had ordered Plaintiff to either “obtain a waiver of service of the summons or complete service of the Summons and Complaint on a Defendant within 90 days of the filing of the Complaint or within 60 days of the filing of this Order, whichever is later” or “the action may be dismissed as to each Defendant not served. Fed.R.Civ.P. 4(m); LRCiv 16.2(b)(2)(B)(ii).” (Doc. 7 at 5). Plaintiff failed to timely serve Defendant Calvin.
On March 15, 2022, the Court ordered Plaintiff to either “(i) file an Affidavit of Service or (ii) show good cause why this case should not be dismissed for failure to timely serve pursuant to Fed.R.Civ.P. 4(m). (Doc. 17). Plaintiff failed to respond to the Court's Order, and the time to do so has passed. The Court presumes the Plaintiff received the Court's Order because it was not returned undeliverable. The Court will recommend that all claims regarding Defendant Calvin be dismissed without prejudice.
I. DISCUSSION
Under Fed.R.Civ.P. 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). If a pro se prisoner proceeding in forma pauperis has provided to the USMS sufficient information to effectuate service on a defendant, the USMS' failure to effect service is “automatically good cause” to extend the service deadline. Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Sellers v. United States, 902 F.2d 598, 603 (7th Cir. 1990)), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). But where a prisoner fails to provide the USMS with accurate and sufficient information to effect service of the summons and complaint, a court's sua sponte dismissal of the unserved defendant(s) is appropriate. Id.
In this case, the Court gave the Plaintiff the opportunity to show good cause why Defendant Calvin should not be dismissed from the lawsuit for failure to timely serve. The Plaintiff did not respond to the Court's Order. Nor did the Plaintiff request additional time to serve Defendant Calvin. It is not the Court's role to assist in obtaining Defendant Calvin'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.”); Pliler v. Ford, 542 U.S. 225, 231 (2004) (federal “judges have no obligation to act as counsel or paralegal to pro se litigants”) (italics in original); Barnes v. United States, 241 F.2d 252 (9th Cir. 1956) (noting pro se litigant does not have rights that a represented litigant does not have). Dismissal without prejudice is appropriate under these circumstances. The undersigned recommends that the Court dismiss Plaintiff's Complaint as to Defendant Calvin without prejudice for failure to timely serve pursuant to Fed.R.Civ.P. 4(m).
II. CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that the Court dismiss without prejudice Defendant Calvin from Plaintiff's Complaint (Doc. 1) for failure to serve pursuant to Fed.R.Civ.P. 4(m).
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).