United States District Court, W.D. Oklahoma
OPINION AND ORDER
CHARLES B. GOODWIN UNITED STATES DISTRICT JUDGE
Leonardo René Brown, appearing pro se and proceeding
in forma pauperis, filed a Second Amended Complaint
on November 17, 2017, asserting claims pursuant to 42 U.S.C.
§ 1983 based on alleged violations of his federal
constitutional rights. See Second Am. Compl. (Doc.
No. 27). For the reasons discussed below, the Court dismisses
the sole remaining claim, an individual-capacity Eighth
Amendment claim against Defendant Whitney Thompson, without
prejudice for failure of service.
September 14, 2018, the Court ordered service of the Second
Amended Complaint upon Defendant Thompson. See Order
of Sept. 14, 2018 (Doc. No. 34). 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 October 5, 2018) to properly request the
issuance of a summons, and 90 days from the date of the Order
(i.e., until December 13, 2018) to ensure that a proof of
service or waiver of service for Defendant Thompson 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 proof of
service as to Defendant Thompson may result in the dismissal
of the claims against her.” 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 the
issuance of a summons on October 9, 2018. See
Pl.'s Req. Issuance of Summons (Doc. No. 36). On October
25, 2018, the USMS filed an unexecuted process return,
containing the notation that Defendant Thompson does not work
at the address Plaintiff provided. See First Process
Receipt & Return (Doc. No. 39).
December 3, 2018, Plaintiff filed a document titled
“Statement for Service of Process” in which
Plaintiff provided two new addresses for Defendant Thompson.
See Pl.'s Notice (Doc. No. 40). Based upon this
submission, the Court granted Plaintiff an extension of time
in which to serve Defendant Thompson, ordered the Court Clerk
to issue a summons directed to Defendant Thompson at the
first new address provided by Plaintiff, and directed the
USMS to attempt service at that address. See Order
of Apr. 12, 2019 (Doc. No. 42). The USMS filed an unexecuted
process return on May 2, 2019, which again indicated that
Defendant Thompson did not work at the address provided.
See Second Process Receipt & Return (Doc. No.
Court then granted Plaintiff a second extension of time,
ordered the Court Clerk to issue a summons directed to
Defendant Thompson at the second new address provided by
Plaintiff, and directed the USMS to attempt service at this
second new address. See Order of June 6, 2019 (Doc.
No. 46). In its Order, the Court reminded Plaintiff that
service is ultimately Plaintiff's responsibility. See
Id. at 2. After attempting service on Defendant Thompson
a third time, the USMS filed a third unexecuted process
return on July 31, 2019, which stated that Defendant Thompson
does not work at the location provided. See Third
Process Receipt & Return (Doc. No. 50).
Plaintiff had failed to file a proof of service or waiver of
service for Defendant Thompson within the time provided, the
Court on August 27, 2019, ordered that Plaintiff had until
September 17, 2019, to show good cause in writing as to why
his claim against Defendant Thompson should not be dismissed.
See Order of Aug. 27, 2019 (Doc. No. 51). This Order
expressly warned Plaintiff that failure to show good cause
may result in the dismissal of Plaintiff's claim against
Defendant Thompson. See Id. at 3 (citing
Fed.R.Civ.P. 4(m)). The Order was mailed to Plaintiff at his
address of record and there is no indication from the docket
that it was not received by Plaintiff. See LCvR
5.4(a). As of this date, Plaintiff has not responded to the
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 complete proper
service upon Defendant Thompson within the prescribed time
limit is grounds for dismissal of the claim against her,
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.Appx. 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) (quoting 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 Defendant Thompson, and no “good
cause” is otherwise reflected in the record before the
Court. Fed.R.Civ.P. 4(m).
“[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. In making this determination, the court
should consider several factors, 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). Defendant Thompson is not a United States officer
or employee, and the Court granted Plaintiff's in
forma pauperis application well before it authorized him
to have process served on Defendant Thompson. See
Fed. R. Civ. P. 4(i)(3); Order of Apr. 21, 2017 (Doc. No. 5)
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 repeatedly 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 Fed.Appx. 595, 596, 597-98 (10th Cir. 2016) (affirming
dismissal under Rule 4(m) where “the district court
first notified [the plaintiff] of its intention to dismiss
the claims against [the defendants] for failure of service
and gave [the plaintiff] time to show good cause for the
failure of service”).
the Court DISMISSES the individual-capacity claim against
Defendant Thompson without prejudice for failure of service