Washington #231477 v. Ryan et al

Filing 66

ORDER ADOPTING REPORT AND RECOMMENDATION: IT IS ORDERED that Magistrate Judge Metcalf's R&R (Doc. 46 ) is accepted and adopted; Petitioner's Objection (Doc. 50 ) is overruled; and Defendant Townsend is dismissed from this action without prejudice. Signed by Judge Diane J Humetewa on 11/2/16. (KGM)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Michael T. Washington,

No. CV-15-1113-PHX-DJH (JFM)

Plaintiff,

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v.

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ORDER

Charles L. Ryan, et al.,

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Defendants.

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This matter is before the Court on the Report and Recommendation (“R&R”)

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issued by United States Magistrate Judge James F. Metcalf on July 19, 2016. (Doc. 46).

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In the R&R, Judge Metcalf recommends dismissing Defendant Townsend because he has

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not been served in accordance with Fed.R.Civ.P. 4(m) and LRCiv 16.2(b)(2)(B)(ii). As

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the R&R states, service was attempted on Defendant Townsend but was returned

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unexecuted on November 6, 2015 because Plaintiff had not provided his complete name

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and, as a result, the Arizona Department of Corrections (“ADOC”) could not verify the

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individual’s employment. (Doc. 12). Judge Metcalf subsequently issued an Order (Doc.

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17) on January 5, 2016 granting Plaintiff a 60-day extension to serve Defendant

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Townsend, among others.

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current work address for Defendant Townsend or, if no longer employed by ADOC, the

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last known home address for Defendant Townsend, under seal. (Doc. 17 at 2). However,

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when the U.S. Marshals Service attempted to serve Defendant Townsend at the address

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provided under seal, it was unable to do so because Defendant Townsend was no longer

In addition, Judge Metcalf directed ADOC to provide a

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at that address. (Doc. 25). Thus, the efforts to serve Defendant Townsend by the

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Marshals Service were unsuccessful. Plaintiff, who bears the ultimate responsibility for

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service, has not subsequently served Defendant Townsend nor has he provided further

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information that would allow the Marshals Service to serve Defendant Townsend.

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Plaintiff filed an Objection (Doc. 50) to Judge Metcalf’s R&R on July 27, 2016.

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He explains that his status as a prisoner limits his ability to obtain information required to

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serve Defendant Townsend. Plaintiff further claims he has requested appointment of

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counsel and has sought assistance from other inmates and the paralegal at the prison. He

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argues that under these circumstances it would be unjust to dismiss Defendant Townsend

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for failure to serve.

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The district judge "shall make a de novo determination of those portions of the

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report or specified proposed findings or recommendations to which objection is made."

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28 U.S.C. § 636(b)(1)(C); see also Fed.R.Civ.P. 72(b)(3) (“The district judge must

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determine de novo any part of the magistrate judge’s disposition that has been properly

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objected to.”); U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (same). The judge "may

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accept, reject, or modify, in whole or in part, the findings or recommendations made by

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the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(3).

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After reviewing this matter de novo, the Court agrees with Judge Metcalf’s

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recommendation. Judge Metcalf granted Plaintiff a 60-day extension of the service

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deadline and directed ADOC to provide a service address for Defendant Townsend.

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Because Defendant Townsend was no longer employed by ADOC (or the prison

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healthcare contractor), a last known home address was provided under seal to the U.S.

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Marshals Service. Defendant Townsend, however, was no longer at that address and no

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forwarding address was given. Plaintiff has provided no other address information for

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Defendant Townsend and the service deadline has expired. Defendant Townsend will

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therefore be dismissed from this action.

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Accordingly,

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IT IS ORDERED that Magistrate Judge Metcalf’s R&R (Doc. 46) is accepted

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and adopted. Petitioner's Objection (Doc. 50) is overruled.
IT IS FURTHER ORDERED that Defendant Townsend is dismissed from this
action without prejudice.
Dated this 2nd day of November, 2016.

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Honorable Diane J. Humetewa
United States District Judge

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