Opinion
CV-22-00240-PHX-MTL
10-28-2022
Gene Veal, Plaintiff, v. Paul Penzone, et al., Defendants.
ORDER
Michael T. Liburdi United States District Judge
Plaintiff Gene Veal is not in custody and represents himself. On February 14, 2022, he filed a pro se civil rights Complaint under 42 U.S.C. § 1983. (Doc. 1.) Before the Court is the Report and Recommendation (“R&R”) of Magistrate Judge Camille D. Bibles recommending that the Court dismiss Mr. Veal's claims without prejudice for failure to serve Defendants under Federal Rule of Civil Procedure 4(m). (Doc. 9.) Mr. Veal filed objections to the R&R. (Doc. 10.) For the reasons expressed below, the Court overrules Mr. Veal's objections and dismisses his claims against each Defendant for failure to complete service under Federal Rule of Civil Procedure 4(m).
I. FACTUAL BACKGROUND
Mr. Veal filed a Complaint against Defendants for alleged injuries stemming from his incarceration around June 10, 2019 to July 25, 2019. (Doc. 1 at 4.) On March 25, 2022, this Court ordered Mr. Veal to obtain a waiver of service of the summons or complete service of the summons and complaint on Defendants by May 24, 2022. (Doc. 6.) On May 26, 2022, this Court noted that the CM/ECF docket indicated that Mr. Veal failed to effect service of process on any Defendant as the March 25th Order required, and ordered him to show cause by June 10, 2022, as to why the Court should not dismiss his claims for failure to comply with the March 25th Order and Federal Rule of Civil Procedure 4. (Doc. 7.) On June 1, 2022, Mr. Veal responded to the Order and supplied the Court with “certificates of service.” (Doc. 8.) He attached receipts that allegedly show that he mailed Defendants copies of the Court's Order (Doc. 6) and his Inmate Grievance Form (Doc. 8 at 10), via certified mail on April 26, 2022 (Doc. 8 at 4). He also attached tracking records that indicate the mail was delivered on April 28, 2022, and April 29, 2022. (Doc. 8 at 6-9.) On June 15, 2022, Magistrate Judge Bibles recommended the Court dismiss Mr. Veal's claims without prejudice for failure to serve Defendants under Federal Rule of Civil Procedure 4(m). (Doc. 9.) On June 16, 2022, Mr. Veal objected to the R&R and asserts that he properly served Defendants. (Doc. 10.)
II. LEGAL STANDARD
Under 28 U.S.C. § 636(b)(1), the Court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” The Court reviews portions of the R&R to which a plaintiff objects de novo. 28 U.S.C. § 636(b)(1)(c); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (“[T]he district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise.”). Federal Rule of Civil Procedure 4(c)(1) states that proper service on a defendant requires a plaintiff to serve a defendant with a summons and a copy of the complaint. Federal Rule of Civil Procedure 4(m) requires the Court to dismiss an action without prejudice for failure to properly serve a defendant, unless the plaintiff shows good cause, then the court must extend the time for service.
III. DISCUSSION
On June 15, 2022, Magistrate Judge Bibles recommended the Court dismiss Mr. Veal's claims without prejudice for failure to serve Defendants under Rule 4(m). (Doc. 9.) Mr. Veal filed his objection to the R&R on June 16, 2022. (Doc. 10.) Thus, the Court will review the R&R de novo.
Magistrate Judge Bibles based her recommendation on the following facts. On March 25, 2022, the Court warned Mr. Veal that if he did not serve summons and a copy of the complaint on the Defendants by May 24, 2022, the Court would dismiss his claims against improperly served Defendants. (Doc. 9 at 1.) The CM/ECF docket indicates that Mr. Veal did not obtain summons for the Defendants by May 24, 2022, or at any time thereafter. (Id. at 3.) The Court ordered Mr. Veal to show cause for the failure to properly serve Defendants by June 10, 2022. (Id. at 1.) Mr. Veal attempted to show cause by submitting evidence that he mailed copies of the Court's Order and his grievance form to each Defendant. (Id. at 3.) Mr. Veal did not serve summons or a copy of the complaint on Defendants by May 24, 2022. (Id.)
Mr. Veal objected to the R&R arguing that he properly served Defendants. First, Mr. Veal asserts that he mailed copies of the summons and a copy of the complaint on Defendants, via first-class mail, on February 22, 2022, and attached receipts from the post office. (Doc. 10 at 1-2, 4-5.) He further contends that he has undisclosed text messages to support that he did mail the summons and a copy of the complaint in February. (Id. 1-2.) Mr. Veal also notes that the letters were never returned to him. (Id.) Mr. Veal does not dispute that he did not mail the summons or a copy of the complaint with the copy of the March 25 th Order and his grievance form in April 2022.
Despite Mr. Veal's assertion that he mailed summons and a copy of the complaint on the Defendants in February 2022, and as Magistrate Judge Bibles correctly notes, the CM/ECF docket indicates that he has not obtained summons at any time. By Mr. Veal's own admission, he did not follow the Court's Order (Doc. 6) that instructed him to complete service of the summons and complaint on the Defendants by May 24, 2022. He deliberately left out the summons and a copy of the complaint when he mailed the March 25th Order and a copy of his grievance form. (See Doc. 10 at 1.) Under these facts, the Court finds that Mr. Veal failed to show good cause for his failure to properly serve Defendants.
Where the Court finds “no good cause, the court has the discretion to dismiss without prejudice or to extend the time period.” In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001). The Ninth Circuit has not “articulate[d] 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. The 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) (internal quotations omitted).
Mr. Veal has not provided the Court with sufficient evidence that he served the summons and a copy of the complaint on Defendants on or before May 24, 2022. To the contrary, at the time of writing this Order, the CM/ECF docket indicates he has still not obtained summons. Under these facts, Mr. Veal's argument that he properly served Defendants in February 2022 is without merit. This Court has no obligation to assist Mr. Veal in completing service, and even warned him that failure to complete service subjects his claims to dismissal. 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.”); see also Pliler v. Ford, 542 U.S. 225, 231 (2004) (“District judges have no obligation to act as counsel or paralegal to pro se litigants.”). The Court therefore finds that Plaintiff has failed to show good cause as to why all of the Defendants should not be dismissed from this lawsuit for failure to complete service and declines to extend the time period. Thus, the Court, in its discretion, dismisses each Defendant without prejudice from this action. Fed.R.Civ.P. 4(m).
IV. CONCLUSION
Accordingly, IT IS ORDERED adopting the Report and Recommendation of the Magistrate Judge (Doc 9).
IT IS FURTHER ORDERED overruling Plaintiff's Objections to the Magistrate Judge's Report and Recommendation (Doc. 10).
IT IS FURTHER ORDERED dismissing without prejudice Defendants Penzone, Gates, Gallardo, Barney, Churci, and Hickman from this action for failure to serve pursuant to Federal Rule of Civil Procedure 4(m).
IT IS FINALLY ORDERED directing the Clerk to enter judgment accordingly and close this case.