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Staples v. United States

United States District Court, W.D. Oklahoma

February 28, 2018

WILLIAM STAPLES, Plaintiff,
v.
THE UNITED STATES OF AMERICA, et al., Defendants.

          REPORT AND RECOMMENDATION

          SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, a federal inmate appearing pro se and in forma pauperis, brought this action under Bivens v. Six Unknown named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), alleging a violation of the Eighth Amendment during his stay at the Federal Transfer Center (FTC). (ECF No. 1). Pursuant to Fed.R.Civ.P. 4(m), the undersigned recommends that the Court dismiss the cause of action against Defendant Gonzalez for failure to effect timely service of process.

         I. BACKGROUND

         On June 24, 2016, Plaintiff filed his Complaint against four Defendants: The United States of America, Dr. Charles Samuel, Jr., Harrell Watts, and Officer Gonzalez. (ECF No. 1). On August 23, 2016, on preliminary review, the undersigned recommended: (1) dismissal of the United States of America, (2) dismissal of the claims against Defendants Watts and Samuel, and (3) dismissal of any official capacity claim or claim for injunctive relief against Defendant Gonzalez. (ECF No. 10). The undersigned also recommended a finding that Plaintiff had stated a valid claim against Defendant Gonzalez in his individual capacity, limited to the recovery of damages. (ECF No. 10). The District Court adopted the recommendation (ECF No. 11) and on October 20, 2016, the undersigned entered an Order Requiring Service and Special Report and directed Plaintiff to serve Defendant Gonzalez with a copy of the Court's order, the Complaint, and a summons. (ECF No. 12).

         In accordance with Federal Rules of Civil Procedure 4, Plaintiff attempted service on Defendant Gonzalez at the FTC, but on December 19, 2016, the summons was returned, unexecuted, with a notation that the FTC did not employ anyone with the last name Gonzalez. (ECF No. 16). On June 5, 2017, the Court ordered Mr. Staples to complete service on Defendant Gonzalez by June 26, 2017, or show cause as to why service had not been made or risk dismissal of the Complaint. (ECF No. 23).

         On June 26, 2017, Plaintiff argued that he attempted service on Defendant Gonzalez via the U.S. Attorney General's Office in Washington D.C., the Bureau of Prisons in Washington D.C., and the U.S. Attorney General's Office in Oklahoma City, and that service was sufficient. (ECF No. 24). On October 18, 2017, the District Court rejected this argument stating: “[t]his action is brought against Defendant Gonzalez in his individual capacity, and he must be personally served with process.” (ECF No. 29:2, citing Fed. R. Civ. P. 4(i)(3)). Even so, the Court gave Plaintiff until November 24, 2017, to complete service on Defendant Gonzalez. (ECF No. 29).

         On October 30, 2017, Mr. Staples requested issuance of summons on Defendant Gonzalez at four addresses-one at the FTC, one at the U.S. Attorney General's Office in Washington D.C., one at the Bureau of Prisons in Washington D.C., and one at the U.S. Attorney General's Office in Oklahoma City. (ECF No. 30).

         The summons at the FTC was returned unexecuted, with a notation that Mr. Gonzalez did not work for the FTC. (ECF No. 34). This was the second time that service at the FTC had been unsuccessful, and for the same reason. See ECF No. 16. Service at the U.S. Attorney General's Office in Oklahoma City was accepted by Cheryl Cagle as an agent for that office, (ECF No. 32), and service at the BOP in Washington, D.C. was also accepted by “C. Tapp.” (ECF No. 33). However, as previously explained to Mr. Staples, service on these entities is not sufficient. See ECF No. 29:2 (stating that service on Mr. Gonzalez through various agencies was insufficient because “[t]his action is brought against Defendant Gonzalez in his individual capacity, and he must be personally served with process.” (citing Fed. R. Civ. P. 4(i)(3)). To date, the second summons sent to Defendant Gonzalez at the U.S. Attorney General's Office in Washington D.C., has not been returned. But even if service was accepted by someone at that office, the service would be insufficient based on the Court's prior rulings. See ECF No. 29.

         II. ANALYSIS

         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 has failed to properly individually serve Defendant Gonzalez despite two extensions of time and seven attempts to do so. The Tenth Circuit has extended the analysis of what constituted “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 form insufficient excuses for failure to effect service within the 120-day 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 § 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 Mr. Staples is 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. ...


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