United States District Court, W.D. Oklahoma
OPINION AND ORDER
CHARLES B. GOODWIN, United States District Judge.
appearing pro se and proceeding in forma pauperis,
filed a Complaint on December 6, 2017, asserting claims
pursuant to 42 U.S.C. § 1983 based on alleged violations
of his federal constitutional rights. See Compl.
(Doc. No. 1). For the reasons discussed below, the Court
dismisses all claims against Defendants Ademola Aderagba and
FNU James without prejudice for failure of service.
Order dated March 22, 2018, the Court ordered service of the
Complaint on each of the four Defendants named in the
pleading. See Order of Mar. 22, 2018 (Doc. No. 9) at
1-3. This Order expressly warned Plaintiff that, even though
the United States Marshals Service (“USMS”) had
been directed “to attempt to accomplish service”
on his behalf, “service [was] ultimately
Plaintiff’s responsibility.” Id. at 2
(citing Fed.R.Civ.P. 4(c)). Plaintiff was given 21 days from
the date of that Order (i.e., until April 12, 2018) to
properly request the issuance of summonses, and 90 days from
the date of the Order (i.e., until June 20, 2018) to ensure
that a proof of service or waiver of service for each
Defendant had been filed with the Court. See Id . at
1-2 (citing Fed.R.Civ.P. 4(c), (d), (l), (m)).
Plaintiff was warned that “[t]he failure to file timely
proofs of service as to any Defendant may result in the
dismissal of the claims against that Defendant.”
Id. at 2 (citing Fed.R.Civ.P. 4(m)).
Order was mailed to Plaintiff at his address of record, along
with the necessary forms for requesting the issuance of
summonses. Plaintiff requested summonses for all four
Defendants. See Pl.’s Request Issuance of
Summonses (Doc. No. 11) at 1-2. On May 21, 2018, the USMS
filed unexecuted process returns for Defendants Aderagba and
James. See Doc. Nos. 20, 21, 22, 23. The unexecuted
returns for Defendant Aderagba bear the handwritten notation
“no such employee” (Doc. Nos. 20, 21), while the
unexecuted returns for Defendant James bear the handwritten
notation “no longer employed” (Doc. Nos. 22, 23).
Plaintiff had failed to file a proof of service or waiver of
service for Defendants Aderagba or James within the time
provided, the Court, on June 20, 2019, directed Plaintiff to
show cause in writing as to why his claims against these
Defendants should not be dismissed. See Order of
June 20, 2019 (Doc. No. 44) at 2.
responded to the Court’s Order on July 5, 2019.
See Pl.’s Resp. (Doc. No. 45). In his
response, Plaintiff states that he “gave the United
States Marshals Office the only identifying information that
[he] could give.” Id. at 1. He further states:
The United States Marshals Office didn’t ask that
corporation for [an] address or anything. [T]he United States
Marshals Office had a responsibility to me . . . to ask for
a[n] address to find th[ose] two Defendants. The U.S.
Marshals Office ha[s] the resources to find . . . anyone they
want to find [i]f they truly want to find them . . . .
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). Thus, Plaintiff’s failure to effect proper
service upon the Defendants within the prescribed time limit
is grounds for dismissal of all claims against those
Defendants, absent 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 Fed.App’x 18, 20 (10th
Cir. 2003). 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.”
Espinoza v. United States, 52 F.3d 838, 841 (10th
Cir. 1995); Fed.R.Civ.P. 4(m). Second, “[i]f the
plaintiff fails to show good cause, the district court must
still consider whether a permissive extension of time may be
warranted, ” considering a number of factors.
Espinoza, 52 F.3d at 841.
Whether Plaintiff Has Shown Good Cause
argues that, having supplied the USMS with “the only
identifying information” he had, he cannot be faulted
for the agency’s failure to accomplish service on
Defendants Aderagba and James. Pl.’s Resp. at 2.
However, while Plaintiff is entitled to service assistance
from the USMS, it falls to him to supply the information the
agency needs to locate and serve each Defendant. See
Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1113
(10th Cir. 2007) (“It is the plaintiff’s
responsibility to provide the United States Marshal with the
address of the person to be served[.]” (citation
omitted)); Pemberton v. Patton, 673 Fed.App’x