United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDAITON
BERNARD M. JONES, UNITED STATES MAGISTRATE JUDGE.
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].
reasons set forth below, the Court should dismiss
Plaintiff's remaining claims against Defendant Lt. White
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).
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 May 19, 2015) (unpublished district court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
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.
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.
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.
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.
“[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 ...