United States District Court, W.D. Oklahoma
CHARLES B. GOODWIN UNITED STATES DISTRICT JUDGE
Fred Smith, appearing pro se, filed an Amended Complaint on
July 26, 2017, asserting claims pursuant to 42 U.S.C. §
1983 based on alleged violations of his federal
constitutional rights. See Am. Compl. (Doc. No. 36).
For the reasons discussed below, the Court dismisses the
remaining claims against Defendant Allbaugh and Defendant
Shelight without prejudice for failure of service.
14, 2018, the Court ordered service of the Amended Complaint
upon Defendants Allbaugh and Shelight. See
Order of June 14, 2018 (Doc. No. 46). Pursuant to this Order,
Plaintiff had 21 days from the date of the Order
(i.e., until July 5, 2018) to properly request the
issuance of summonses and 90 days from the date of the Order
(i.e., until September 12, 2018) to ensure that a
proof of service or waiver of service for each Defendant was
filed with the Court. See Id . at 2 (citing
Fed.R.Civ.P. 4(c), (d), (l), (m)).
was warned that “[t]he failure to file timely proofs of
service as to either Defendant may result in the dismissal of
the claims against that Defendant.” Id.
(citing Fed.R.Civ.P. 4(m)).
28, 2018, the Court received Plaintiff’s request for
the issuance of two summonses; irregularly, the request
included proofs of service indicating that Plaintiff had
already attempted service using copies of the summonses that
had not yet been issued by the Court. See Doc. No.
47. The Court issued summonses and mailed them to Plaintiff
at his address of record. By Order dated October, 19, 2018,
the Court-after quashing the irregular summonses for multiple
reasons and finding that Plaintiff had not filed proofs of
service for the issued summonses-directed that Plaintiff had
until November 9, 2018, to show good cause in writing as to
why his claims against Defendants Allbaugh and Shelight
should not be dismissed without prejudice. See Order
of Oct. 19, 2018 (Doc. No. 55) at 7. The Order expressly
warned Plaintiff that failure to show good cause may result
in the dismissal of Plaintiff’s claims against these
Defendants. See Id . (citing Fed.R.Civ.P. 4(m)).
Order was mailed to Plaintiff at the most recent address
provided, and there is no indication from the docket that the
Order was returned as nondeliverable or otherwise not
received by Plaintiff. As of this date, Plaintiff has failed
to respond to the Court’s Order. And Plaintiff at no
time has filed documents with the Court reflecting that the
issued summonses were properly served on either Defendant.
a defendant is not served within 90 days after the complaint
is filed, the court- on motion or on its own after notice to
the plaintiff-must dismiss the action without prejudice
against that defendant or order that service be made within a
specified time.” Fed.R.Civ.P. 4(m). Although Plaintiff
is a pro se litigant, he is required to comply with the same
rules of procedure governing other litigants, including Rule
4. See DiCesare v. Stuart, 12 F.3d 973, 980 (10th
Cir. 1993) (stating that pro se plaintiff was
“obligated to follow the requirements of Fed.R.Civ.P.
4”). Thus, Plaintiff’s failure to complete proper
service upon the Defendants within the prescribed time limit
is grounds for dismissal of all claims against those
Defendants, absent sufficient justification for this failure.
See Fed. R. Civ. P. 4(m).
courts in this circuit “employ a two-step analysis
for dismissal pursuant to Rule 4(m).” Womble v.
Salt Lake City Corp., 84 F. App’x 18, 20 (10th
Cir. 2003) (citing Espinoza v. United States, 52
F.3d 838, 841 (10th Cir. 1995)). First, if the plaintiff
shows good cause for his or her failure to properly serve a
defendant, the court must extend the deadline for an
appropriate period. Id.; Fed.R.Civ.P. 4(m).
Plaintiff has made no attempt to show “good
cause” under Rule 4(m) for the failure to complete
service upon Defendants, and no “good cause” is
otherwise reflected in the record before the Court.
“[i]f the plaintiff fails to show good cause, the
district court must still consider whether a permissive
extension of time may be warranted.” Espinoza,
52 F.3d at 841. The court should consider several factors in
making this determination, including whether “the
applicable statute of limitations would bar the refiled
action”; whether the plaintiff tried to follow
“the complex requirements of multiple service”
when serving the United States, its agencies, or employees;
and whether there is reason to protect a pro se plaintiff
“from consequences of confusion or delay attending the
resolution of an in forma pauperis petition.”
Id. at 842 & n.8 (internal quotation marks
omitted). Neither Defendant Allbaugh nor Defendant Shelight
is a United States officer or employee, and Plaintiff is not
proceeding in forma pauperis in this action.
See Fed. R. Civ. P. 4(i)(3).
the Espinoza factors weigh in favor of dismissal
under Rule 4(m),  and the Court discerns no other policy
considerations that warrant another permissive extension in
this case. Further, Plaintiff has been warned that failure to
accomplish service would result in a dismissal without
prejudice and has been afforded an opportunity to justify his
failure to do so. See Smith v. Glanz, 662 F.
App’x 595, 596, 597-98 (10th Cir. 2016) (affirming
dismissal under Rule 4(m) where “the district court
first notified [Plaintiff] of its intention to dismiss the
claims against [Defendants] for failure of service and gave
[Plaintiff] time to show good cause for the failure of
the Court DISMISSES the remaining individual capacity claim
against Defendant Allbaugh and Defendant Shelight without
prejudice for failure of service under Rule 4(m) of the
Federal Rules of Civil ...