United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
BERNARD M. JONES UNITED STATES MAGISTRATE JUDGE.
a state prisoner proceeding pro se and in forma pauperis,
filed an Amended Complaint pursuant to 42 U.S.C. § 1983
alleging numerous violations at the Lawton Correctional
Facility (LCF), [Doc. No. 34]. United States District Judge
Stephen P. Friot has referred the matter for proposed
findings and recommendations consistent with 28 U.S.C. §
636(b)(1)(B) and (C). Defendant Musallam has filed a
Motion to Dismiss arguing that he was not properly served
within the ninety-day service window, [Doc. No. 89], and
Plaintiff has filed a Response, [Doc. No. 101]. For the
reasons set forth below, the Court should deny the motion.
Standard of Review
Musallam seeks dismissal under Fed.R.Civ.P. 12(b)(5).
See Mot. at 3. A “Rule 12(b)(5) motion
challenges the mode of delivery or the lack of delivery of
the summons and complaint.” 5B Charles Alan Wright
& Arthur R. Miller, Federal Practice and Procedure 3D
§ 1353. “In opposing a Rule 12(b)(5) motion, the
plaintiff bears the burden of showing that he or she has
‘complied with all statutory and due process
requirements.'” Smith v. Allbaugh, No. CIV
16-654-G, 2018 WL 5114146, at *1 (W.D. Okla. Oct. 19, 2018)
(unpublished district court order) (citation omitted). On
this issue, “[t]he parties may submit affidavits and
other documentary evidence for the court's consideration,
and plaintiff is entitled to the benefit of any factual
doubt.” Craig v. City of Hobart, No.
CIV-09-0053-C, 2010 WL 680857, at *1 (W.D. Okla. Feb. 24,
2010) (unpublished district court order).
appearing pro se, Plaintiff was responsible for serving
Defendant Musallam with a summons and the Amended 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)). Relevant here, he could do so
by “delivering a copy of each to an agent authorized by
appointment or by law to receive service of process.”
alleged that Defendant Musallam is LCF's resident
physician, [Doc. No. 34, at 6], and he provided the U.S.
Marshals Service with the LCF prison address for purposes of
service. The U.S. Marshals Service then executed service on
Defendant Musallam by leaving a copy with “Holmstrom
Exec. Assnt.” [Doc. No. 58, at 9]. However, Defendant
Musallam claims that “Brittany Holmstrom, the Executive
Assistant of Lawton Correctional Facility, is not an officer,
managing or general agent, or an agent authorized to received
service of process on behalf of Defendant Musallam.”
Mot. at 3. The Court judicially notices that Ms. Holmstrom
accepted service for nine other LCF employees the same day.
See [Doc. No. 58, at 1-8, 10].
Plaintiff bears the initial burden, the Court finds that he
has “filed [an executed] return of service, . . . and
is ‘entitled to the benefit of any factual
doubt.'” Driskell v. Thompson, No.
12-CV-03107-REB-KLM, 2013 WL 5835114, at *4 (D. Colo. Oct.
30, 2013) (unpublished order adopting report and
recommendation). More importantly, Defendant Musallam
“fails to provide an affidavit or other offer of proof
to support his claim that Ms. [Holmstrom] is incapable of
accepting service on his behalf. The Court cannot accept
Defendant's unsupported allegations as fact.”
Id. Accordingly, the Court recommends that Defendant
Musallam's Motion to Dismiss be denied. See Id.
(adopting the magistrate judge's conclusion that
“without an affidavit or other acceptable support for
Defendant's allegation regarding Ms. Howell's
authorization to receive service [on his behalf], the Court
respectfully recommends that the District Judge deny
Defendant's Motion to Dismiss pursuant to Rule
reasons discussed above, the Court should deny Defendant
Musallam's Motion to Dismiss, [Doc. No. 89]. Should the
Report and Recommendation be adopted, the Court further
recommends that Defendant Musallam be ordered to answer or
otherwise respond to the Amended Complaint within twenty days
of the adoption order.
OF RIGHT TO OBJECT
parties are advised of their right to object to this Report
and Recommendation. See 28 U.S.C. § 636. Any
objection must be filed with the Clerk of the District Court
by February 14, 2019. See 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b)(2). Failure to make timely
objection to this Report and Recommendation waives the right
to appellate review of the factual and legal issues addressed
herein. See Moore v. United States, 950 F.2d 656
(10th Cir. 1991).
Report and Recommendation does not terminate the referral by