Marroquin v. McDonald et al

Filing 40

ORDER, Plaintiff's claims against Defendant Wilkinson are dismissed without prejudice for failure to serve pursuant to Fed. R. Civ. P. 4(m). Signed by Judge David G Campbell on 9/11/14. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Armando Antonio Marroquin,

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Plaintiff,

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ORDER

v.

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No. CV-13-01761-PHX-DGC (BSB)

Jim McDonald, et al.,

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Defendants.

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This matter is before the Court on its own review. Plaintiff, proceeding pro se,

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commenced this civil rights action pursuant to 42 U.S.C. § 1983 on August 27, 2013.

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(Doc. 1.) Plaintiff requested leave to proceed in forma pauperis, which the Court granted.

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(Docs. 3, 6.) The Court screened the complaint in accordance with 28 U.S.C. § 1915A(a)

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and ordered service on five defendants, including Defendant Wilkinson. (Doc. 14 at 15.)

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Plaintiff served four of the Defendants, but did not serve Defendant Wilkinson.

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On April 15, 2014, the court issued an order directing Plaintiff to show cause why

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Defendant Wilkinson should not be dismissed without prejudice based on Plaintiff’s

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failure to serve him with process pursuant to Fed. R. Civ. P. 4(m) and LRCiv

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16.2(b)(2)(B)(i). (Doc. 16.) In an apparent response to the Court’s April 15, 2014 order,

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Plaintiff filed a motion for enlargement of time asserting that he could not serve

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Defendant Wilkinson because he had no means of obtaining an alternative address for

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Wilkinson. (Doc. 18.) On June 4, 2014, the Court directed the served Defendants to

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provide, under seal, Defendant Wilkinson’s last-known home address. (Doc. 24.) On

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June 17, 2014, Defendants complied with the Court’s order and the United States

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Marshal Service (USMS) attempted to serve Defendant Wilkinson at the address that

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Defendants had provided. (Docs. 26, 32.) On July 30, 2014, service on Defendant

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Wilkinson was again returned unexecuted. (Doc. 32.)

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On August 11, 2014, after the deadline for serving the Complaint had passed and

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Plaintiff had not served Defendant Wilkinson, the Court ordered Plaintiff to show cause

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on or before August 22, 2014 why his claims against Defendant Wilkinson should not be

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dismissed without prejudice for failure to serve. (Doc. 37); see Fed. R. Civ. P. 4(m) (“If

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a defendant is not served within 120 days after the complaint is filed, the court ─ on

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motion or on its own after notice to the plaintiff ─ must dismiss the action without

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prejudice as to that defendant or order that service be made in a specified time.”).

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Plaintiff has not responded to the August 11, 2014 order or served Defendant

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Wilkinson. Accordingly, the Court will dismiss, without prejudice, Plaintiff’s claims

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against Defendant Wilkinson for failure to serve pursuant to Federal Rule of Civil

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Procedure 4(m).

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IT IS ORDERED that Plaintiff’s claims against Defendant Wilkinson are
DISMISSED without prejudice for failure to serve pursuant to Fed. R. Civ. P. 4(m).
Dated this 11th day of September, 2014.

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