United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
T. ERWIN UNITED STATES MAGISTRATE JUDGE
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).
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.
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.
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
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).
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).
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
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.
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.