Johnson v. Clark
ORDER AND ORDER TO SHOW CAUSE: ORDERED that Plaintif's 42 Motion for Sanctions, 44 Request for Leave to Amend Pleading to Add a Defendant and the 45 Application for Entry of Default are DENIED. IT IS FURTHER ORDERED that Plaintiff show c ause in writing on or before Friday, March 8, 2013 why his claims against Defendant Clark and this action should not be dismissed without prejudice for failure to serve process on Defendant Clark pursuant to Fed.R.Civ.P. 4(m). Signed by Magistrate Judge Lawrence O Anderson on 2/21/2013. (LFIG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Robert Earl Johnson,
Deputy Warden Mary Clark,
No. CV-11-2287-PHX-SRB (LOA)
ORDER TO SHOW CAUSE
This matter arises on Plaintiff’s Motion for Sanctions, filed on January 31, 2013;
Plaintiff’s Request for Leave to Amend Pleading to Add a Defendant, filed on January 31,
2013; and Plaintiff’s Application for Entry of Default, filed on February 6, 2013. (Docs. 42,
44-45) For the reasons set forth below, the Court denies all three motions and orders
Plaintiff to show cause in writing why this lawsuit should not be dismissed for failure to
serve Defendant Clark pursuant to Federal Rule of Civil Procedure (“Fed.R.Civ.P.”) 4(m).
Pro se Plaintiff filed a Civil Rights Complaint by a Prisoner on November 22, 2011.
(Doc. 1) After mandatory screening pursuant to 28 U.S.C. § 1915A(a), on January 6, 2012,
the Court granted Plaintiff in forma pauperis status and determined that Plaintiff’s Eighth
Amendment claim against Defendant Deputy Warden Mary Clark may proceed. (Docs. 5 at
1, 10) While Plaintiff designated Count II as a claim for retaliation, the Court concluded that
Count II was more appropriately characterized as a claim for threat to safety.1 (Id. at 10) The
Court concluded Plaintiff alleged sufficient facts to support a plausible claim there was a
substantial risk of harm if he returned to his former unit, Defendant Clark knew of such risk,
and she acted with deliberate indifference by nevertheless ordering him to return to his
former unit. The Court ordered Defendant Clark file an answer to Count II only. (Id.) The
remaining counts and Defendants were dismissed. (Id.)
After the passage of more than thirteen months from entry of the Court’s screening
order, Plaintiff still has not served Deputy Warden Mary Clark with process. A fifth attempt
at effecting service was returned unexecuted on January 22, 2013, because “Deputy Warden
Mary Clark is no longer employed with the [Arizona] Department of Corrections.”
(“ADOC”). (Doc. 43 at 3) Summons have been returned unexecuted on January 26, 2012,
March 20, 2012, July 24, 2012, September 17, 2012, and then, the most recent return
mentioned above, on January 22, 2013. (Docs. 8, 13, 29, 33 and 43) The Court has ordered
the Arizona Attorney General’s Office (“AAGO”) to provide the last known address of
Defendant Clark under seal. (Docs. 10, 21 and 24) The AAGO has complied with the
Court’s order. (Docs. 11, 26) On February 13, 2012, the Court ordered the Clerk of Court
to provide Plaintiff with five subpoenas in blank in order that Plaintiff may discover
Defendant Clark’s address. (Doc. 10) Additionally, the Court granted Plaintiff multiple
extensions of time in which to serve Defendant Clark.
Without any evidence to support his contention, Plaintiff now seeks sanctions against
the ADOC and the AAGO because he speculates Defendant Clark is avoiding service of
process and the two non-party entities, ADOC and AAGO, are intentionally providing
“bogus” addresses “for the purpose of assisting Defendant Clark to avoid service.” (Doc. 42
In footnote 2 of its screening order, the Court indicated that “[a]lthough Plaintiff
characterizes Clark’s actions as retaliation, a more plausible explanation is that Clark
increased Plaintiff’s custody score based on the accumulation of disciplinary infractions.
Thus, the underlying issue is whether Clark acted with deliberate indifference to Plaintiff’s
safety by ordering him to return to his former unit.” (Doc. 5 at 10 n. 2)
II. Service of Process
Federal courts cannot exercise personal jurisdiction over a defendant without proper
3 service of process. Omni Capital Int’l, Ltd. v. Wolff & Co., 484 U.S. 97, 104 (1987). To
4 determine whether service of process was proper, courts look to the requirements of Federal
5 Rule of Civil Procedure (“Fed.R.Civ.P.”) 4. Rule 4 contains detailed provisions on the manner
6 in which service should occur. A plaintiff may also utilize the service of process rules that
7 apply in the state in which the federal district court is located or, if service is effected in
8 another state, the rules of that state. Rule 4(e)(1), Fed.R.Civ.P. Therefore, service of process
9 will be upheld if it conforms to either the federal or Arizona’s service of process rules. A
10 plaintiff, however, must serve all defendants with a copy of the summons and complaint
11 within 120 days of filing a complaint or any court extensions upon a showing of good cause.
12 Rule 4(m), Fed.R.Civ.P.
Dismissal of a party is appropriate where a plaintiff fails to show good cause for
delays in service. See Walker v. Sumner, 14 F.3d 1415, 1421–22 (9th Cir. 1994). Good cause
only exists in rare circumstances. See generally Fimbres v. United States, 833 F.2d 138, 139
(9th Cir. 1987) (strategic reasons do not constitute good cause); Townsel v. Contra Costa
Cnty., 820 F.2d 319, 320 (9th Cir. 1987) (inadvertence or negligence does not constitute
good cause). Ignorance of the existence of the 120-day rule does not constitute “good cause.”
Townsel, 820 F.2d at 320. The Townsel court expressly noted that the 120-day rule “is
intended to force parties and their attorneys to be diligent in prosecuting their causes of
action.” Id.; see also Bivins v. Ryan, 2013 WL 321847 (D. Ariz. Jan. 28, 2013). “While
district courts have broad discretion to extend time for service under Rule 4(m), ‘no court has
ruled that the discretion is limitless.’” Reishaus v. Almaraz, 2011 WL 1526936, at *3 (D.
Ariz. April 21, 2011) (quoting Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007)).
The plaintiff bears the burden of showing good cause for not timely serving the
defendant. Wei v. Hawaii, 763 F.2d 370, 372 (9th Cir. 1985); McCormack v. City and Cnty.
of Honolulu, 2011 WL 6934710, at *4 (D. Haw. Dec. 30, 2011) (citation omitted). Applying
Rule 4(m) is a two-step process. First, if the plaintiff has established good cause for failing
to timely serve the defendant, the district court must extend the time period for service. In
re: Sheehan, 253 F.3d 507, 512 (9th Cir. 2001).
At a minimum, “good cause” means excusable neglect. A plaintiff may also
be required to show the following: (a) the party to be served personally
received notice of the lawsuit; (b) the defendant would suffer no prejudice; and
(c) plaintiff would be severely prejudiced if his complaint were dismissed.
6 Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991). Second, if good cause does not exist,
7 the court may in its discretion dismiss the case without prejudice or extend the time period.
8 Sheehan, 253 F.3d at 512.
9 III. Defaults and Default Judgments
“Service of process is the mechanism by which the court [actually] acquires” the
11 power to enforce a judgment against the defendant’s person or property. Robinson v. Heritage
12 Elementary School, 2009 WL 1578313, at *2 (D. Ariz. June 3, 2009) (quoting S.E.C. v. Ross,
13 504 F.3d 1130, 1138 (9th Cir. 2007) (citation and internal quotation marks omitted; emphasis
14 in original). “In other words, service of process is the means by which a court asserts its
15 jurisdiction over the person. Id. (citing Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986) (“A
16 federal court is without personal jurisdiction over a defendant unless the defendant has been
17 served in accordance with Fed.R.Civ.P. 4.”) (citation and internal quotation marks omitted).
18 “[S]ince service of process is the means by which a court asserts jurisdiction to adjudicate the
19 rights of a party, it is uniformly held that a judgment is void where the requirements for
20 effective service have not been met.”2 Grand Canyon Resort Corp. v. Drive-Yourself Tours,
21 Inc., 2006 WL 1722314, *2 (D. Ariz. June 22, 2006) (quoting Combs v. Nick Garin Trucking,
22 825 F .2d 437, 442 (D.C. Cir. 1987)).
Entry of default and default judgment are governed by Rule 55. Obtaining a default
24 judgment, however, is a two-step process. Sierra Nevada Corp. v. Digibee Mobile Ltd., 2012
25 WL 1298545, at *1 (D. Nev. April 13, 2012) (citing Eitel v. McCool, 782 F.2d 1470, 1471
“The sole exception to this principle exists when a defendant has waived
insufficiency of service and thereby has voluntarily subjected himself to personal
jurisdiction.” Combs, 825 F .2d at 442 n. 42 (citations omitted).
1 (9th Cir. 1986)) (“Eitel apparently fails to understand the two-step process required by Rule
2 55.”) (citation omitted). First, Rule 55(a) provides that “[w]hen a party against whom a
3 judgment for affirmative relief is sought has failed to plead or otherwise defend, and that
4 failure is shown by affidavit or otherwise, the clerk must enter the party’s default.” Second,
5 after a clerk enters default, a party must seek entry of default judgment under Rule 55(b).
6 Default is not freely granted, however, as a case should, whenever possible, be decided on
7 the merits. TCI Group Life Ins. Plan v. Knoebber, 244 F.3d 691, 697 (9th Cir. 2001); see also
8 Mattivi Bros. Leasing Inc. v. Ecopath Indus. LLC, 2011 WL 2784609, at *3 (D. Ariz. July 14,
9 2011) (citing United States v. Signed Personal Check No. 730, 615 F.3d 1085, 1091 n. 1 (9th
10 Cir. 2010) (noting that Rule 60(b) is applied less liberally than Rule 55(c) because in the Rule
11 55(c) context “there is no interest in the finality of the judgment with which to contend”).
12 IV. Amendments
Federal Rule Civil Procedure 15(a) allows a party to amend a pleading at any time
14 with leave of the court, and directs that leave should be freely granted “when justice so
15 requires.” Ninth Circuit case law strongly supports a liberal approach to allowing
16 amendments. Lopez v. Smith, 203 F.3d 1122, 1128 (9th Cir. 2000) (“[W]e have repeatedly
17 stressed that the court must remain guided by the underlying purpose of Rule 15 . . . to
18 facilitate decision on the merits, rather than on the pleadings or technicalities.”). Fed.R.Civ.P.
19 15(a)(2). Rule 15(a), however, gives the district court discretion to deny leave to amend for
20 reasons such as: (1) undue delay, (2) bad faith, (3) prejudice to the opposing party, (4) futility
21 of amendment, and (5) whether plaintiff has previously amended his complaint. Foman v.
22 Davis, 371 U.S. 178, 182 (1962); Western Shoshone Nat’l Council v. Molini, 951 F.2d 200,
23 204 (9th Cir. 1991). “Leave to amend need not be given if a complaint, as amended, is subject
24 to dismissal.” Moore v. Kayport Package Exp., Inc., 885 F.2d 531, 538 (9th Cir. 1989).
25 “Futility of amendment can, by itself, justify the denial of a motion for leave to amend.”
26 Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995).
V. Rule 8, Federal Rules of Civil Procedure
A complaint must contain “a short and plain statement of the claim showing that the
1 pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “Each allegation must be simple, concise,
2 and direct.” Fed.R.Civ.P. 8(d)(1). A claim must be stated clearly enough to provide each
3 defendant fair opportunity to frame a responsive pleading. McHenry v. Renne, 84 F.3d 1172,
4 1176 (9th Cir. 1996).
Dismissal of a complaint under Rule 12(b)(6) may be based on “the lack of a
6 cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal
7 theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). To avoid
8 dismissal or the denial of a proposed amendment, a complaint or amended complaint must
9 contain “only enough facts to state a claim for relief that is plausible on its face.” Bell Atlantic
10 Corp. v. Twombly, 550 U.S. 544, 570 (2007). The principle that a court accepts as true all of
11 the allegations in a complaint does not apply to legal conclusions or conclusory factual
12 allegations. Ashcroft v. Iqbal, 556 U.S. 662, 677-679 (2009). “Threadbare recitals of the
13 elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
14 “A claim has facial plausibility when the plaintiff pleads factual content that allows the court
15 to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
16 “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than
17 a sheer possibility that a defendant has acted unlawfully.” Id. To show that the plaintiff is
18 entitled to relief, the complaint must permit the court to infer more than the mere possibility
19 of misconduct. Id.
To state a claim under § 1983, a plaintiff must allege facts supporting that (1) the
21 conduct about which he complains was committed by a person acting under the color of state
22 law and (2) the conduct deprived him of a federal constitutional or statutory right. Wood v.
23 Ostrander, 879 F.2d 583, 587 (9th Cir. 1989). In addition, to state a valid constitutional
24 claim, a plaintiff must allege that he suffered a specific injury as a result of the conduct of
25 a particular defendant and he must allege an affirmative link between the injury and the
26 conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). Further, there
27 is no respondeat superior liability under § 1983, so a defendant’s position as the supervisor
28 of someone who allegedly violated a plaintiff’s constitutional rights does not make him liable.
1 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978); Taylor v. List, 880 F.2d 1040, 1045
2 (9th Cir. 1989).
The Court notes that Plaintiff’s amendment motion is procedurally improper because
4 he did not submit a copy of the proposed amended complaint as required by Local Rule of
5 Civil Procedure 15.1. Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1043 (9th
6 Cir. 2011) (holding the plaintiffs’ motion to amend was procedurally improper because it was
7 made orally and they did not submit a copy of the proposed amended pleadings). Nonetheless,
8 the Court will consider the motion.
The United States Supreme Court has held that the liberal reading granted to pro se
10 pleadings does not extend to excusing the failure of pro se litigants to comply with clear
11 procedural requirements. McNeil v. United States, 508 U.S. 106, 113 (1993). To the contrary,
12 “[p]ro se litigants must follow the same rules of procedure that govern other litigants,” King
13 v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and ignorance of Rule 4 does not constitute good
14 cause for untimely service. Patel v. Dameron Hosp., 2000 WL 35619441, at *5 (E.D. Cal.
15 June 23, 2000) (citing Townsel, 820 F.2d at 320).
16 VI. Discussion
Plaintiff had an obligation to serve Defendant Clark within 120 days after the
18 complaint was filed. The Complaint was filed on November 22, 2011. (Doc. 1) The Court has
19 relaxed this deadline to begin from the entry of the January 6, 2012 screening order and
20 continued it several times so that Plaintiff could effectuate service of process. The filing of
21 an amended complaint generally does not restart the 120-day service period. See, e.g.,
22 McGuckin v. United States, 918 F.2d 811, 813 (9th Cir. 2006); Bolden v. City of Topeka,
23 Kansas, 441 F.3d 1129, 1148 (10th Cir. 2006) (the 120-day period provided by Rule 4(m) is
24 not restarted by the filing of an amended complaint except as to those defendants newly added
25 in the amended complaint”) (emphasis added).
The Court will deny Plaintiff’s Motion for Sanctions. Neither the ADOC and the
27 AAGO are parties to the present action. Additionally, as set forth in the Court’s prior orders,
28 it is ultimately Plaintiff’s responsibility to provide Defendant Clark’s proper address to the
1 United States Marshal Service in order to effectuate service. Toscana v. Cambra, 2003 WL
2 21432919, at *1 (N.D. Cal. June 10, 2003). The United States Supreme Court has made clear
3 that federal “judges have no obligation to act as counsel or paralegal to pro se litigants.”
4 Pliler v. Ford, 542 U.S. 225, 231 (2004) As an impartial decisionmaker, it is not a federal
5 judge’s role or responsibility to track down a defendant’s address so a plaintiff may serve
6 process. This degree of involvement “would undermine [trial] judges’ role as impartial
7 decisionmakers.” Id. In this action, the Court has taken many steps to help facilitate Plaintiff’s
8 efforts in attempting to serve Defendant Clark, including providing blank subpoenas. If
9 Plaintiff cannot provide the United States Marshal Service with an appropriate address to
10 serve Defendant Clark, the Court can do little more at this juncture. There being no evidence
11 that the non-parties have failed to comply with its orders, the Court will deny Plaintiff’s
12 sanctions motion.
Putting aside for the moment that Plaintiff has not lodged a proposed amended
14 complaint required by LRCiv 15.1, Plaintiff’s amendment motion does not cure the
15 deficiencies contained in Plaintiff’s initial complaint against Charles Ryan and still fails to
16 state any plausible claim for relief against him. Plaintiff alleges “Charles Ryan must be
17 restored as a defendant, because he is the approving authority of Defendant’s Clark’s
18 retalitory (sic) actions. . . Charles Ryan was the top supervisor of Defendant Clark, who
19 finalized the violative (sic) acts, and who has final review.” (Doc. 44 at 2) Neither these
20 allegations nor others in Plaintiff’s amendment motion are insufficient to state a plausible
21 claim for relief against Charles Ryan, which was previously explained in the Court’s January
22 6, 2012 screening order. See doc. 5 at 3-4. The Court finds that further amendment of
23 Plaintiff’s complaint would be futile and, therefore, the Court will deny further leave to
24 amend. See McHenry, 84 F.3d at 1177 (affirming dismissal with prejudice of prolix,
25 argumentative, and redundant amended complaint that did not comply with Rule 8(a)).
The Court will also deny Plaintiff’s Application for Entry of Default because
27 Defendant Clark has not been properly served with process and a district court cannot
28 exercise personal jurisdiction over a defendant without proper service of process. See Omni
1 Capital, 484 U.S. at 104.
Finally, the Court will enter an order for Plaintiff to show cause in writing why
3 Defendant Clark should not be dismissed from this action for a failure to serve. As explained
4 above, the 120-day period has long passed. After more than thirteen months from entry of the
5 Court’s screening order, Plaintiff has not yet accomplished service of process on Defendant
6 Clark, despite many efforts by the Court to assist him. In view of the foregoing, the Court
7 orders Plaintiff to show cause on or before March 8, why this action should not be dismissed
8 for failure to serve pursuant to Fed.R.Civ.P. 4(m).
IT IS ORDERED that Plaintiff’s Motion for Sanctions, doc. 42; Plaintiff’s Request
11 for Leave to Amend Pleading to Add a Defendant, doc. 44; and Plaintiff’s Application for
12 Entry of Default, doc. 45, are DENIED.
IT IS FURTHER ORDERED that Plaintiff show cause in writing on or before
14 Friday, March 8, 2013 why his claims against Defendant Clark and this action should not
15 be dismissed without prejudice for failure to serve process on Defendant Clark pursuant to
16 Fed.R.Civ.P. 4(m).
Dated this 21st day of February, 2013.
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