Opinion
CV-20-02359-PHX-SPL (ESW)
07-22-2021
Rimoni Pologa-Seiuli, Plaintiff, v. Robert Rice, et al., Defendants.
REPORT AND RECOMMENDATION
Honorable Eileen S. Willett, United States Magistrate Judge
TO THE HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT JUDGE:
This is a civil rights action filed by Arizona state prisoner Rimoni Pologa-Seiuli (“Plaintiff”) pursuant to 42 U.S.C. § 1983. On February 17, 2021, pursuant to 28 U.S.C. 1915A(a), the Court screened Plaintiff's Complaint and ordered Defendants Rice and Perez to answer. (Doc. 7 at 6). Defendant Perez waived service of process and filed his answer on May 10, 2021. (Docs. 9, 11). Service was returned unexecuted as to Defendant Rice (Doc. 10), and the service deadline as to Defendant Rice has now expired. On May 25, 2021, the Court issued an Order requiring Plaintiff to show cause why this action should not be dismissed as to Defendant Rice for failure to timely serve in accordance with Federal Rule of Civil Procedure 4(m) and LRCiv 16.2(b)(2)(B)(ii). (Doc. 15). Plaintiff responded to the Order to Show Cause on June 21, 2021. (Doc. 18). For the reasons explained below, it is recommended that the Court dismiss Defendant Rice without prejudice.
The Court's February 17, 2021 Screening Order required service to be effected by the later of ninety days following the filing of the Complaint or sixty days of the filing of the Order. (Doc. 7 at 6).
I. LEGAL STANDARDS
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 U.S. Marshals Service (“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.
II. DISCUSSION
In his Response to the Order to Show Cause, Plaintiff explains that he returned the completed service packet for Defendant Rice on March 4, 2021. (Doc. 18). Plaintiff requests that the Court not dismiss Defendant Rice “due to the fact I served process on 3.4.21 and it was out of my hands and into the courts or U.S. Marshals.” (Id.).
Although Plaintiff did timely complete and return the service packets to the Clerk of Court, service of process was returned unexecuted as to Defendant Rice. (Doc. 10). The notation on the Process Receipt and Return states “Ret'd unexecuted. No. longer works at Saguaro Corr. Ctr.” (Id.).
It is not the Court's role to assist in locating Defendant Rice on Plaintiff's behalf. 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). Plaintiff has not provided the USMS with accurate and sufficient information to effect service on Defendant Rice. The undersigned finds that Plaintiff has failed to show good cause why Defendant Rice should not be dismissed from the lawsuit for failure to timely serve. In addition, the Court warned Plaintiff that if service is not timely effected, then the action may be dismissed as to each Defendant not served. (Doc. 7 at 6). It is recommended that the Court dismiss without prejudice Defendant Rice from this action.
III. CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that the Court dismiss without prejudice Defendant Rice from this action for failure to serve pursuant to Fed.R.Civ.P. 4(m) and LRCiv 16.2(b)(2)(B)(ii).
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).