United States District Court, W.D. Oklahoma
TIMOTHY D. DeGIUSTI UNITED STATES DISTRICT JUDGE.
matter is before the Court for review of the Report and
Recommendation [Doc. No. 36], issued by United States
Magistrate Judge Shon T. Erwin pursuant to 28 U.S.C. §
636(b)(1)(B) and (C). Judge Erwin recommends the dismissal
without prejudice of Plaintiff's civil rights action
against Correctional Officer Gonzalez (hereafter
“Defendant Gonzalez”) pursuant to Fed.R.Civ.P.
4(m), based on findings that Plaintiff has not shown good
cause for his failure to serve Defendant Gonzalez for more
than a year and that a permissive extension of time for
service is not warranted.
a federal prisoner appearing pro se, has filed a
timely written Objection [Doc. No. 37]. Plaintiff agrees with
Judge Erwin's summary of the procedural history of the
case, and although Plaintiff's position regarding prior
attempts to serve Defendant Gonzalez is not entirely clear,
the Court finds no basis for objection to Judge Erwin's
statement that Defendant Gonzalez remains unserved. The Court
has already determined that Plaintiff's attempts were
ineffective and “Defendant Gonzalez has not been
properly served” with process. See 10/18/17
Order [Doc. No. 29] at 2.
explains in his Objection and an attached affidavit the
extent of his efforts to determine the full name of Defendant
Gonzalez and his current whereabouts, that is, a current
place of employment within the Bureau of Prisons, a current
employer, or a residence address. These have included
contacts with the Federal Transfer Center where the alleged
incident occurred, written requests to the Bureau of Prisons,
including a Freedom of Information Act (FOIA) request, and
requests for assistance from staff members at Plaintiff's
current place of confinement. Plaintiff states these contacts
and requests have drawn no response, except he has been
informed that an answer to his FOIA request “will take
up to nine months.” See Obj. at 3. Plaintiff
asks the Court to order “the Federal Bureau of Prisons
and the Department of Justice . . . to reveal this staff
member[']s full name and his whereabouts to the U.S.
Marshal so that this defendant can be
found.” Plaintiff has previously filed in the case
record a copy of his FOIA request to the Bureau of Prisons;
his letter indicates that he is also unsure of the correct
spelling of “Gonzalez” or “Gonzales.”
See Letter [Doc. No. 35].
Court must make a de novo determination of any
portion of the Report to which a specific objection is made,
and may accept, reject, or modify the recommended decision,
or return the matter to the magistrate judge with
instructions. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
72(b)(3). Liberally construing Plaintiff's pro
se Objection, the Court understands that Plaintiff
objects to Judge Erwin's findings that Plaintiff has not
demonstrated “good cause” for a mandatory
extension of time under Rule 4(m) and that a permissive
extension of time is not warranted.
legal framework for the Court's analysis of these issues
is correctly stated by Judge Erwin in his Report.
See R&R at 3-5. Upon de novo
consideration, the Court reluctantly agrees that no further
extensions of time for service should be granted.
Erwin's finding that Plaintiff has not demonstrated
“good cause” for the lack of service is based
both on the length of time the case has been pending without
service, and Plaintiff's inability thus far to determine
the identity of Defendant Gonzalez or his current
whereabouts. Plaintiff was first advised of the 90-day time
limit for service by the Order Requiring Service and Special
Report, which was issued on October 20, 2016.Plaintiff's
efforts to identify and locate Defendant Gonzalez have
apparently been ongoing since Judge Erwin informed Plaintiff
by Order of June 5, 2017, that his first attempts at service
were ineffective. Judge Erwin and the undersigned judge have
previously granted Plaintiff multiple extensions of time to
serve Defendant Gonzalez. While the Court, like Judge Erwin,
is sympathetic to Plaintiff's situation, his case cannot
be put on hold indefinitely without any realistic hope for
better success in the near future in identifying and locating
Defendant Gonzalez (or even determining a correct spelling of
his surname). At this point, Plaintiff can no longer
establish a diligent effort to comply with the time limit for
to consider a discretionary extension of time for service
under Rule 4(m), Plaintiff's makes no objection to Judge
Erwin's analysis of this issue. Nevertheless, the Court
has reviewed the analysis and fully concurs in Judge
Erwin's finding that a dismissal without prejudice is
appropriate. Because this Bivens action was timely
filed within the applicable statute of limitations, a
dismissal without prejudice will not operate to bar a future
filing; a refiled action is preserved by Oklahoma's
savings statute, Okla. Stat. tit. 12, § 100.
See, e.g., Roberts v. Barreras,
484 F.3d 1236, 1242-43 (10th Cir. 2007) (applying state
tolling statute in Bivens action). For the reasons
stated by Judge Erwin, the Court finds that a further
extension of time to effect service of process is unwarranted
under the circumstances and that the action against Defendant
Gonzalez should be dismissed without prejudice under Rule
THEREFORE ORDERED that the Report and Recommendation [Doc.
No. 36] is ADOPTED. This action is DISMISSED WITHOUT
PREJUDICE as to all parties and claims. A separate
judgment of dismissal shall be entered.
 Plaintiff also suggests that the
United States Attorney or the Department of Justice could
waive service of process on behalf of Defendant Gonzalez.
However, Rule 4(d)(1) authorizes a waiver of service only by
the individual defendant subject to service.
 The commencement of the 90-day period
was postponed until that date. See Order Requiring
Service [Doc. ...