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Dawson v. Rios

United States District Court, W.D. Oklahoma

September 30, 2019

RICHARD DAWSON JR., Plaintiff,
v.
HECTOR RIOS et al., Defendants.

          OPINION AND ORDER

          CHARLES B. GOODWIN, United States District Judge.

         Plaintiff, 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.

         Background

         By 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)).

         This 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).

         Because 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.

         Plaintiff 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 . . . .

Id.

         Analysis

         “If 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).

         District 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.

         I. Whether Plaintiff Has Shown Good Cause

         Plaintiff 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 ...


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