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De La Cruz v. Doe

United States District Court, W.D. Oklahoma

December 28, 2017

ARMANDO GARCIA DE LA CRUZ, Plaintiff,
v.
JOHN DOE WARDEN, FTC, et al., Defendants.

          REPORT AND RECOMMENDATION

          SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE

         Plaintiff, a state prisoner appearing pro se, brings this action pursuant to 42 U.S.C. § 1983 alleging various violations of his constitutional rights. Pursuant to an order by United States District Judge Stephen P. Friot, the matter has been referred to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). The undersigned recommends that the Court dismiss the cause of action against the “Doe” Defendants for failure to effect timely service of process, pursuant to Fed.R.Civ.P. 4(m).

         I. BACKGROUND

         Plaintiff originally filed this Bivens civil rights action in the United States District Court for the District of Nebraska on August 8, 2014. Plaintiff's Complaint named defendants at various correctional facilities in California, Arizona, Oklahoma and Texas. (ECF No. 1). On preliminary review, the District Court for the District of Nebraska transferred the case to the United States District Court for the District of Northern Texas. (ECF No. 14). On February 24, 2016, the latter court entered judgment and ordered that the June 21 and July 26, 2012, claims against Oklahoma Federal Transfer Center employees be severed pursuant to Fed.R.Civ.P. 21 and the action naming these defendants transferred to this Court. On March 14, 2016, the undersigned entered an Order Requiring Service and Special Report. See ECF No. 56. Following an extension of time, Summons (ECF No. 64) was issued electronically on July 6, 2016, as to John Doe (Bus officer #3 FTC OK transfer bus); John Doe (Bus Officer #1 FTC OK Transfer bus); John Doe (Bus officer #2 FTC OK Transfer bus); John Doe (Lieutenant Aircraft FTC OK); Unknown (Captain OKC Transfer Center); Unknown Lieutenant (FTC Ok in charge of Transfer Center); Unknown Lieutenant (FTC OK in charge of bus and 3 officers); and K Watson. Summons was returned “Executed” as to Watson only. See ECF Nos. 66, 67, 68, 69, 70, 71, 72, and 73. On February 24, 2017, Plaintiff was granted leave to serve a third (3rd) party subpoena on the Bureau of Prisons (BOP) in an attempt to discover the identities of the remaining unserved “Doe” Defendants. The Clerk of Court received the Plaintiff's Notice of Subpoena (ECF No. 103) on March 6, 2017, and issued the submitted Subpoena (ECF No. 102) on March 7, 2017, returning 2 copies of issued subpoena along with a copy of the complaint to Plaintiff on the same date. On June 21, 2017, Plaintiff was granted an extension of time to serve the third (3rd) party subpoena on the BOP. On August 29, 2017, the Report and Recommendation of the undersigned was accepted, adopted and affirmed. Defendant Dr. Kenneth Watson's motion to dismiss or in the alternative for summary judgment (ECF No. 85) was GRANTED. Plaintiff's claims against defendant Watson based on the Americans With Disabilities Act were DISMISSED without prejudice, for failure to state a claim upon which relief may be granted. Defendant Watson was GRANTED summary judgment on plaintiff's claim alleged under the Eighth Amendment, based on plaintiff's failure to exhaust administrative remedies within the required period.

         II. ANALYSIS

         On August 31, 2017, the Plaintiff was ordered to Show Cause by September 21, 2017, as to why his claim against “Doe” defendants should not be dismissed. The Plaintiff has failed to show cause for his failure to do so. In fact, the Plaintiff has failed to respond to the Order, (ECF No. 112) in any way.

         Under Rule 4(m), if the defendant in a civil action is not served within 90 days after the complaint is filed, a district court generally has discretion to either dismiss the case or reasonably extend the time for service. See Espinoza v. United States, 52 F.3d 838, 840-41 (10th Cir. 1995). If Plaintiff shows good cause for the delay, however, the district court must extend the time to serve the defendant. Id. at 841. Thus-as the Tenth Circuit noted in Espinoza-a Rule 4(m) inquiry involves a two-step analysis: “The preliminary inquiry to be made under Rule 4(m) is whether the plaintiff has shown good cause for the failure to timely effect service.... If the plaintiff fails to show good cause, the district court must still consider whether a permissive extension of time may be warranted.” Id. As detailed above, Plaintiff failed to do so. Plaintiff also failed to respond to the undersigned's show cause order thereby making no attempt to demonstrate good cause for his failure to timely serve defendants.

         The Tenth Circuit has extended the analysis of what constitutes “good cause” under the pre-1993 amendment Rule 4(j) to the “good cause” inquiry under the post- 1993 amendment Rule 4(m). See In re Kirkland, 86 F.3d 172, 176 (10th Cir. 1996) (citing Despain v. Salt Lake Area Metro Gang Unit, 13 F.3d 1436 (10th Cir. 1994)). “Good cause” can be shown by demonstrating a defendant evaded service, see Cox v. Sandia Corp., 941 F.2d 1124, 1125 (10th Cir. 1991), or some other “showing of good faith on the part of the party seeking the enlargement and some reasonable basis for noncompliance with the time specified.” In re Kirkland, 86 F.3d at 175 (citations omitted).

         “A plaintiff who seeks to rely on the good cause provision must show meticulous efforts to comply with the rule.” In re Kirkland, 86 F.3d at 176. A district court “is clearly not compelled to accept a lesser ‘excusable neglect' showing.” Id. Thus, change of counsel, inadvertent oversight on the part of counsel, or inadequate performance of a process server are insufficient excuses for failure to effect service within the specified period. See Cox, 941 F.2d at 1125 (discussing cases); Carlson v. Nat'l Petroleum, Inc., 135 F.R.D. 193, 195 (D. Colo.1991).

         Title 28 U.S.C. § 1915(d) states that when an individual is granted leave to proceed in forma pauperis, “[t]he officers of the court shall issue and serve all process, and perform all duties in such cases.” Fed.R.Civ.P. 4(c)(3) dovetails with 28 U.S.C. § 1915 and provides that the court must appoint a United States Marshal or Deputy Marshal to serve plaintiff's process if the plaintiff is authorized to proceed in forma pauperis.

         Because Plaintiff is a party proceeding in forma pauperis and is entitled to rely on the United States Marshals Service for service of the summons and complaint, the undersigned hereby assumes good cause in that the Plaintiff must work with the Marshals Service to fulfill its duties. A court should not penalize a plaintiff by dismissing the action when the Marshals Service fails to serve process, unless the defect results from plaintiff's inadequate or inaccurate information or lack of diligence.

         A. Mandatory Extension

         For a mandatory extension of time, Plaintiff must show “good cause” for his failure to perfect service. Fed.R.Civ.P. 4(m). While the court is sympathetic to inmates who have difficulty identifying prison staff, Plaintiff filed his lawsuit in August 2014-well over three years ago-and he has failed to seek another extension of time demonstrating any good cause for his inability to identify any of the “Doe” Defendants. Thus, the undersigned finds Plaintiff is not entitled to a mandatory extension of time.

         B. Previous ...


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