Opinion
No. CV-18-00004-PHX-DWL (ESW)
01-29-2020
Robert Angel Ramirez, Plaintiff, v. Joseph Brisbois, et al., Defendants.
REPORT AND RECOMMENDATION
TO THE HONORABLE DOMINIC W. LANZA, UNITED STATES DISTRICT JUDGE:
By Order of the Court filed September 12, 2019, the deadline for filing proof of service of process for Defendant Brisbois was extended to November 15, 2019 (Doc. 52). On November 27, 2019, the United States Marshal Service ("USMS") returned the summons for Defendant Brisbois unexecuted with the comment: "Subject does not reside at listed address. Current address unknown." (Doc. 66 at 3).
Plaintiff filed his pro se civil rights Complaint on January 2, 2018 (Doc. 1). Three extensions of time have been granted to Plaintiff to effectuate service of process on Defendant Brisbois (Docs. 10, 27, 52). The Court has issued two prior orders to show cause why Defendant Brisbois should not be dismissed from this litigation for failure to timely serve pursuant to Fed. R. Civ. P. 4(m). (Docs. 25, 48). Despite all efforts, Plaintiff has not accomplished timely service of process on Defendant Brisbois. As of the date of filing this Report and Recommendation, no request for additional time to serve has been filed.
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.
It is not the Court's role to assist Plaintiff in obtaining Defendant Brisbois' 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). The Court has been more than generous with extensions of time to enable the Plaintiff to effectuate service of process on Defendant Brisbois. Two years have now passed, and Plaintiff has not been able to obtain a current address for USMS to serve Defendant Brisbois. The Court's discretion to extend the time for service of process is not limitless. No request for further extensions of that time is pending. The undersigned will recommend that Defendant Brisbois be dismissed without prejudice from Plaintiff's Complaint for failure to timely serve pursuant to Fed. R. Civ. P. 4(m).
For the reasons set forth herein,
IT IS RECOMMENDED that the Court dismiss without prejudice Defendant Brisbois 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).
Dated this 29th day of January, 2020.
/s/_________
Honorable Eileen S. Willett
United States Magistrate Judge