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Hendricks v. Drake

United States District Court, W.D. Oklahoma

March 5, 2018

ANDREW LEE HENDRICKS, II, Plaintiff,
v.
LEVIE DRAKE, et al., Defendants.

          REPORT AND RECOMMENDAITON

          BERNARD M. JONES, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, Andrew Lee Hendricks, II, a state prisoner proceeding pro se and in forma pauperis, filed a Complaint pursuant to 42 U.S.C. § 1983. United States District Judge Timothy D. DeGiusti referred the matter for proposed findings and recommendations consistent with 28 U.S.C. § 636(b)(1)(B) and (C), and, on screening, dismissed the claims against Defendants F. DeWayne Beggs Detention Center and Levie Drake. [Doc. Nos. 11, 15]. The Court directed Plaintiff to serve the one remaining party - Defendant Lt. White - with the Complaint, summons, and Order Requiring Service and Special Report. Plaintiff's deadline was February 7, 2018. [Doc. No. 12]. Plaintiff did not complete the necessary service papers and did not serve Defendant Lt. White by that date. Consequently, the Court ordered Plaintiff to show cause, on or before February 28, 2018, why it should not dismiss the claims against Defendant Lt. White without prejudice. [Doc. No. 16]. That order was returned as undeliverable on February 27, 2018. [Doc. No. 17].

         For the reasons set forth below, the Court should dismiss Plaintiff's remaining claims against Defendant Lt. White without prejudice.

         I. Analysis

         Although appearing pro se, Plaintiff is responsible for serving Defendant Lt. White with a summons and the Complaint. See Fed. R. Civ. P. 4(c)(1); see also DiCesare v. Stuart, 12 F.3d 973, 980 (10th Cir. 1993) (stating that even though plaintiff was pro se, he was “obligated to follow the requirements of Fed.R.Civ.P. 4” (citation omitted)). As noted above, Plaintiff has failed to do so. So, the Court must determine whether the record reflects “good cause” for a mandatory extension of time, and if not, whether a permissive extension of time is warranted. Espinoza v. United States, 52 F.3d 838, 841 (10th Cir. 1995); see also Murphy v. City of Tulsa, 556 F. App'x 664, 666-69 (10th Cir. 2014) (delineating Espinoza's required inquiries).

         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). The Court attempted to give Plaintiff this opportunity, but because he failed to keep his address current, the order to show cause was returned undeliverable. Under such circumstances, the Court should find that Plaintiff is not entitled to a mandatory extension of time. See Glaze v. Comanche County Oklahoma, No. 14-937-C, 2015 WL 2408149, at *1 (W.D. Okla. May 19, 2015) (unpublished district court order) (finding that plaintiff's failure to inform the court his address had changed, resulting in an undeliverable order to show cause for failure to serve, “stood as a roadblock” to a mandatory extension of time for service).

         B. Permissive extension

         “[W]hen a plaintiff fails to show good cause for untimely service, ‘the district court must still consider whether a permissive extension of time may be warranted. At that point the district court may in its discretion either dismiss the case without prejudice or extend the time for service.'” Murphy, 556 F. App'x at 668-69 (quoting Espinoza, 52 F.3d at 841). The Court considers three factors in deciding whether a permissive extension is warranted.

         First, the Court considers whether the statute of limitations would bar Plaintiff from refiling against Defendant Lt. White. See Espinoza, 52 F.3d at 842. Plaintiff alleges the constitutional violation occurred in February 2017, [Doc. No. 1, at 5], and he has a two-year limitations period in which to file the action. See McCarty v. Gilchrist, 646 F.3d 1281, 1289 (10th Cir. 2011) (noting Oklahoma's personal injury statute of limitations is two years). So, Plaintiff still has almost a year - or until February 2019 - to refile his suit against Defendant Lt. White. Additionally, because Plaintiff timely filed his Complaint in September 2017, Oklahoma's savings clause would salvage Plaintiff's ability to refile against Defendant Lt. White. That statute provides:

If any action is commenced within due time, and a judgment thereon for the plaintiff is reversed, or if the plaintiff fail in such action otherwise than upon the merits, the plaintiff . . . may commence a new action within one (1) year after the reversal or failure although the time limit for commencing the action shall have expired before the new action is filed.

         Okla. Stat. tit. 12, § 100; see also Mott v. Carlson, 786 P.2d 1247, 1248 (Okla. 1990) (noting that the original suit had been dismissed for failure to serve summons and holding that Okla. Stat. Tit. 12, § 100 “allows a suit so dismissed to be refiled within one year”). Under these circumstances, this factor weighs against an extension of time.

         Second, the Court considers whether Plaintiff has unsuccessfully attempted to serve the United States. See Espinoza, 52 F.3d at 842. That circumstances is not present here.

         Third, “[t]he district court should also take care to protect [a] pro se plaintiff from consequences of confusion or delay attending the resolution of an in forma pauperis petition.” Espinoza, 52 F.3d at 842 n.8 (quotation omitted). Here, the Court granted Plaintiff's application for leave to proceed in forma pauperis without delay or confusion in September 2017. [Doc. No. 5]. This factor also weighs against granting a permissive extension of time to effect service. See De La Cruz v. Doe, No. CIV-16-181-F, 2017 WL 7222382, at *4 (W.D. Okla. Dec. 28, 2017) (unpublished report and recommendation) (finding that when the Court granted plaintiff in forma pauperis status “without delay or ...


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