Opinion
Civil Action 3:22-cv-00598
02-10-2023
CRAIG ALAN TOAZ, #07990-040, Plaintiff, v. Z. ALBRIGHT, et al., Defendants.
(BRANN, C.J.)
REPORT AND RECOMMENDATION
JOSEPH F. SAPORITO, JR. United States Magistrate Judge
This action was initiated on April 25, 2022, when the plaintiff's pro se complaint was received by the clerk and lodged for filing. (Doc. 1.) It was not accompanied by the requisite filing fee or an application for leave to proceed in forma pauperis. Payment of the $402 filing and administrative fees was received by the clerk on April 29, 2022, and the complaint was deemed filed. (Doc. 6.)
On May 2, 2022, a summons packet was issued to the plaintiff for service on the defendants. (Doc. 8; see also Doc. 7.) Now, more than nine months later, despite multiple extensions of time and orders to show cause why service has not been perfected, no proof of proper service or signed waiver of service has been filed with respect to any defendant.
I. Discussion
Rule 4(m) of the Federal Rules of Civil Procedure provides, in pertinent part:
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).
The fee-paid complaint in this action was initially lodged for filing on April 25, 2022. (Doc. 1.) After payment of the $402 filing and administrative fees, a summons packet was issued to the plaintiff on May 2, 2022, for service on the defendants. (Doc. 8; see also Doc. 7.)
On August 9, 2022, after the 90-day period had expired, the court entered a show cause order admonishing the plaintiff that the action would be dismissed if he did not show good cause within 30 days why service had not been made within the 90-day period. (Doc. 10.) The plaintiff filed a timely response to the order to show cause, in which he described his initial, unsuccessful effort to personally serve the defendants with summonses within the prison where they worked and he was incarcerated, and a subsequent attempt to serve the defendants by sending the summons and complaint to each of them by certified mail. (Doc. 11.) The plaintiff attached a completed proof-of-service declaration to his response for each of the defendants. These declarations stated that, on May 11, 2022, the plaintiff himself served the summons on each defendant by certified mail addressed to his or her respective workplace.
On September 12, 2022, we entered an order granting the plaintiff a sua sponte extension of time to effectuate proper service of process on all defendants, or to obtain waivers of formal service. (Doc. 12.) We noted that the service efforts described by the plaintiff in his response to our show cause order were improper and entirely ineffective. We noted that simply delivering copies of the summons and complaint to individual defendants by certified mail was insufficient to perfect service of process upon these defendants, all of whom are officers or employees of the United States. See Fed.R.Civ.P. 4(i). We instructed the plaintiff that he was required to serve both the United States and the individual defendants. See Fed.R.Civ.P. 4(i)(3). We explained to the plaintiff that he had not complied with the process for serving the United States. See Fed. R. Civ. P. 4(i)(1). We further explained that he also had not complied with the process for serving the individual defendants in their personal capacity. See Fed.R.Civ.P. 4(e).
The plaintiff seeks an award of damages from the defendants in their personal capacities, thus requiring him to personally serve the individual defendants in accordance with Rule 4(i)(3). The plaintiff also seeks injunctive relief, thus requiring that copies of the summons and complaint be sent to the individual defendants by registered or certified mail in accordance with Rule 4(i)(2)-this, the plaintiff did accomplish, but he failed to also effectuate proper service on the United States, which is required under both provisions.
Our order also noted that the federal rules provided an alternative process that permitted a plaintiff to request, by regular postal mail, that individual, personal-capacity defendants waive formal service of process. See Fed.R.Civ.P. 4(d). We further noted that the proof-of-service forms filed by the plaintiff indicated that he had attempted to serve the summonses on the defendants himself, which is not permitted under the federal rules. See Fed.R.Civ.P. 4(c)(2) (“A person who is at least 18 years old and not a party may serve a summons and complaint.”) (emphasis added). We directed the plaintiff to perfect service of process upon all defendants, or obtain waivers of formal service, on or before December 16, 2022, and we admonished him that no further extensions of time would be granted in the absence of good cause. See generally McCurdy v. Am. Bd. of Plastic Surgery, 157 F.3d 191, 196 (3d Cir. 1998).
On January 3, 2023, the plaintiff having failed to file proof of service with respect to any of the defendants, we entered a second order to show cause why this action should not be dismissed for failure to timely serve original process upon the defendants. (Doc. 15.)
On February 6, 2023, the plaintiff filed a timely response to our show cause order,in which he expressed his subjective-but incorrect- belief that all defendants had been properly served. (Doc. 16.) The plaintiff did not submit competent proof of service on any of the defendants, but he attached as an exhibit a copy of an email from his sister, which apparently confirms that the summons and complaint previously sent by certified mail had been received by and signed for by various individuals at the defendants' respective workplaces.For the same reasons that we previously gave to the plaintiff in our order of September 12, 2022, these mailings simply do not suffice to constitute proper service of process upon the defendants. See Constien v. United States, 628 F.3d 1207, 1213-16 (10th Cir. 2010) (outlining the requirements for service of original process on federal government defendants); Staudte v. Abrahams, 172 F.R.D. 155, 155 (E.D. Pa. 1997) (“Except where a wavier has been obtained, the Federal Rules of Civil Procedure do not provide for service of original process by mail, including certified mail.”).
Although received and docketed by the clerk on February 6, 2023, this pro se submission by the incarcerated plaintiff was signed and dated on January 31, 2023, within the 30-day period we afforded for him to respond. See Houston v. Lack, 487 U.S. 266, 270-71 (1988) (articulating the “prison mailbox rule”).
None of the names on the certified mail receipts were those of the defendants themselves. Presumably, the person who signed each receipt was authorized to accept service of process on behalf of the respective defendants. Three of the receipts were signed on October 31, 2022, one was signed on November 1, 2022, and the last one was delivered and marked “COVID 19” in lieu of a signature. (Doc. 16-1, at 2.)
Despite ample time and detailed instruction by the court, the plaintiff has not submitted proof of proper service upon any of the defendants, nor has he submitted an executed waiver of service by any defendant.
Despite having twice received notice of possible sua sponte dismissal for failure to timely serve a summons and copy of the complaint on each of the defendants, the plaintiff has failed to effectuate proper service of process on the defendants or to articulate good cause for an extension of time. Accordingly, it is recommended that this action be dismissed without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.
The plaintiff has also filed multiple motions for preliminary injunctive relief. (Doc. 2; Doc. 9; Doc. 13.) We further recommend that these motions be denied as moot.
II. Recommendation
For the foregoing reasons, it is recommended that:
1. This action be DISMISSED WITHOUT PREJUDICE for failure to timely perfect service under Rule 4(m) of the Federal Rules of Civil Procedure;
2. The plaintiff's motions for preliminary injunctive relief (Doc. 2; Doc. 9; Doc. 13) be DENIED AS MOOT; and
3. The Clerk be directed to mark this case as CLOSED.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated February 10, 2023. Any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which
objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.