Opinion
CV-23-00296-PHX-SPL (MTM)
11-30-2023
Anthony James Merrick, Plaintiff, v. David Shinn, et al., Defendants.
TO THE HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
Honorable Michael T. Morrissey, United States Magistrate Judge.
I. Summary of Conclusion
This matter is before the Court on its own review. Plaintiff failed to effect service on Defendant S. McQueen and the service deadline has expired. Accordingly, the Court will recommend that Plaintiff's claims against Defendant S. McQueen be dismissed without prejudice under Rules 4(m) and 41(b) of the Federal Rules of Civil Procedure.
II. Background
On July 17, 2023, Plaintiff filed a Second Amended Complaint. (Doc. 10.) In its screening Order filed the same day, the Court ordered that Defendants Shinn, Miller, C. Gonzalez, S. McQueen, and D. Gonzales, in their individual capacities only, must answer the First Amendment claim in Count One. (Doc. 9.) The Court also ordered that Defendant Thornell, in his official capacity only, must answer Plaintiff's claims for injunctive relief. (Doc. 9.) Additionally, the Court stated that if Plaintiff does not either obtain a waiver of service of the summons or complete service of the summons and complaint on Defendants within 90 days of the filing of the complaint or within 60 days of the filing of its Order, whichever is later, the action may be dismissed. (Doc. 9.)
The record reflecting that Defendants Shinn, Miller, C. Gonzalez, D. Gonzales, and Thornell have been served, but Defendant S. McQueen has not (Docs. 11-16), the Court issued an Order requiring Plaintiff to show cause why Defendant S. McQueen should not be dismissed under Fed.R.Civ.P. 4(m) for failure to complete service (Doc. 17). On September 29, 2023, Plaintiff filed a response to the Court's Order, which the Court construed as a request for assistance with service of Defendant S. McQueen. (Doc. 21.)
In an effort to move this matter forward, the Court required defense counsel of the served Defendants to advise Plaintiff and the Court regarding this matter. (Doc. 22.) The Court stated, “If Defendant S. McQueen is still employed with the Department of Corrections, Defendants shall provide that information to Plaintiff. If Defendant S. McQueen is no longer employed with the Department of Corrections, Defendants shall provide his last known home address to the Court UNDER SEAL.” (Doc. 22.)
On October 5, 2023, the served Defendants complied with the Court's Order and provided the last known home address of Defendant S. McQueen, ex parte and under seal, for the sole purpose of facilitating service of process upon him by the U.S. Marshal's Service. (Docs. 23, 24.) However, service was again returned unexecuted on October 25, 2023, stating “mail returned to sender - address not known.” (Doc. 26.)
III. Discussion
a. Rule 4(m)
As an initial matter, Plaintiff has failed to timely serve Defendant S. McQueen under Rule 4(m) of the Federal Rules of Civil Procedure, which 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.Fed. R. Civ. P. 4(m).
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 (9th Cir. 2009).
Here, Plaintiff has neither filed proof of service on Defendant S. McQueen nor shown good cause why the action should not be dismissed against him. Accordingly, the Court will recommend the action be dismissed without prejudice as to Defendant S. McQueen for failure to serve under Rule 4(m) of the Federal Rules of Civil Procedure.
b. Rule 41(b)
Plaintiff's action 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) of the Federal Rules of Civil Procedure provides “[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 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 factor 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 this case. Plaintiff's failure to effect service on Defendant S. McQueen as directed, prevents the case from proceeding against him 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 show cause why this matter should not be dismissed, and required the served Defendants to provide assistance in facilitating service on Defendant S. McQueen.
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 the instant case, the Court finds that a dismissal with prejudice would be unnecessarily harsh. Therefore, the Court will recommend dismissal of this action without prejudice as to Defendant S. McQueen pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
Accordingly, IT IS RECOMMENDED that Plaintiff's complaint (doc. 10) be dismissed without prejudice as to Defendant S. McQueen under Fed.R.Civ.P. 4(m) and 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.