Slover v. Gila County Board of Supervisors et al

Filing 27

ORDER that the reference to the Magistrate Judge is withdrawn as to dismissal this action. IT IS FURTHER ORDERED that this action is dismissed without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure and the Clerk shall enter judgment. Signed by Senior Judge James A Teilborg on 7/19/17. (LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Martin Douglas Slover,

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Plaintiff,

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Gila County Board of Supervisors, et al.,

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ORDER

v.

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No. CV-16-02888-PHX-JAT (JZB)

Defendants.

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Plaintiff has failed to timely serve Defendant Johnson, the only remaining

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Defendant in this matter after screening, and has failed to respond to the Court’s Order to

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Show Cause why his claims against Defendant Johnson should not be dismissed for

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failure to serve. Therefore, as detailed below, the Court will dismiss this action without

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prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.

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I.

Background

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On August 29, 2016, Plaintiff, who is confined in the Arizona State Prison

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Complex-Tucson, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983.

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(Doc. 1.) On September 21, 2016, the Court screened the Complaint, ordered Defendant

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Johnson to answer Count One, dismissed the remaining claims and Defendants, and

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ordered Plaintiff to complete and return a service packet for Defendant Johnson to the

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Clerk of Court within 21 days of the date of the Order. (Doc. 5 at 10.) On November 7,

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2016, the Clerk received a completed service packet as to Defendant Johnson, and on

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November 8, 2016, forwarded the service packet to the United States Marshal Service

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(“USMS”) for service. On January 13, 2017, a Process Receipt and Return was filed with

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the notation “Returned unexecuted. Does not work at Gila River Sheriff’s Office any

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longer.” (Doc. 13.)

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On January 25, 2017, the Court ordered Plaintiff, on or before February 8, 2017,

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to either provide a current work address for Defendant Johnson or show cause why his

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claims against Defendant Johnson should not be dismissed for failure to effect service.

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(Doc. 16.) On February 1, 2017, Plaintiff filed an untitled document, which the Court

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construed as a Response to the Court’s Order to Show Cause. (Doc. 18.) In his Response,

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Plaintiff states his case should not be dismissed because “I am going to try and locate

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[Defendant Johnson’s] address [through] my mother” and “I don[’]t know how to get

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[Defendant Johnson’s] address from in prison.” (Id.)

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On February 16, 2017, Plaintiff filed an untitled document, which the Court

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construed as a Motion for assistance in locating Defendant Johnson. (Doc. 19.) In his

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Motion, Plaintiff indicated that he is unable to locate Defendant Johnson’s address, and

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he requested the Court assist him. On February 28, 2017, the Court granted Plaintiff’s

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request and ordered the Gila County Sheriff, J. Adam Shepherd, to file with the Court a

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current work address for Defendant Johnson, if still employed by the Gila County

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Sheriff’s Office, or, if not, the last known home address for Defendant Johnson, under

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seal and ex parte. (Doc. 20.)

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On March 20, 2017, J. Adam Shepherd, the Gila County Sheriff, filed a Notice

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with the Court indicating that Defendant Johnson is no longer employed by the Gila

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County Sheriff’s Office, and provided, under seal, the last known home address for

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Defendant Johnson. (Doc. 23.) Upon receipt of the address, the Clerk of Court completed

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a service packet for Defendant Johnson and forwarded it to the USMS for service. On

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May 18, 2017, a Process Receipt and Return was filed with the notation “Deputy went to

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address provided, residence appeared vacant. Spoke to neighbors on both sides and they

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stated they had no[t] seen any one there in 2 years.” (Doc. 25.)

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On June 5, 2017, the Court ordered Plaintiff, on or before June 19, 2017, to either

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provide a current address for Defendant Johnson, or otherwise show cause why his claims

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against Defendant Johnson should not be dismissed for failure to effect service pursuant

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to Rule 4(m) of the Federal Rules of Civil Procedure. (Doc. 26.) To date, Plaintiff has

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not provided a current address for Defendant Johnson or otherwise responded to the

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Court’s Order to Show Cause.

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II.

Discussion
The Court’s September 21, 2016 Screening Order states the following:

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If Plaintiff fails to timely comply with every provision of this
Order, including these warnings, the Court may dismiss this
action without further notice. See Ferdik v. Bonzelet, 963 F.2d
1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an
action for failure to comply with any order of the Court).

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....

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(8) If Plaintiff does not either obtain a waiver of service of the
summons or complete service of the Summons and Complaint on
a Defendant within 90 days of the filing of the Complaint or
within 60 days of the filing of this Order, whichever is later, the
action may be dismissed as to each Defendant not served. Fed. R.
Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(ii).

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(Doc. 5 at 10-11.)

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Rule 16.2(b)(2)(B)(ii) of the Local Rules of Civil Procedure, which governs

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prisoner civil rights suits, provides that service shall be completed by the maximum date

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to effect service under Rule 4(m) of the Federal Rules of Civil Procedure, “or sixty (60)

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days from filing of the service order, whichever is later.” Rule 4(m) of the Federal Rules

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of Civil Procedure requires that service be completed within 90 days of the date the

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complaint was filed.

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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.
But if the plaintiff shows good cause for the failure, the court
must extend the time for service for an appropriate period.
Fed. R. Civ. P. 4(m).

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Good cause to avoid dismissal may be demonstrated by
establishing, at minimum, excusable neglect. See Boudette v.
Barnette, 923 F.2d 754, 756 (9th Cir. 1991). In addition to
excusable neglect, a plaintiff may be required to show the
following factors to bring the excuse to the level of good cause:
“(a) the party to be served personally received actual notice of
the lawsuit; (b) the defendant would suffer no prejudice; and (c)
plaintiff would be severely prejudiced if his complaint were
dismissed.” Id.

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Lemoge v. United States, 587 F.3d 1188, 1198 n.3 (9th Cir. 2009).

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“[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely

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on the U.S. Marshal for service of the summons and complaint.” Puett v. Blandford, 912

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F.2d 270, 275 (9th Cir. 1990). “So long as the [plaintiff] has furnished the information

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necessary to identify the defendant, the marshal’s failure to effect service ‘is

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automatically good cause within the meaning of Rule 4[(m)].’” Walker v. Sumner, 14

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F.3d 1415, 1422 (9th Cir. 1994) (quoting Sellers v. United States, 902 F.2d 598, 603 (7th

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Cir. 1990)).

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However, it remains Plaintiff’s responsibility to provide the United States Marshal

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with accurate and sufficient information to effect service. See id. The Court is not

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required to act as an investigative body in ascertaining a correct address for Defendant.

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Id.; DeRoche v. Funkhouser, No. CV 06-1428-PHX-MHM (MEA), 2008 U.S. Dist.

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LEXIS 70422, at *2-5 (D. Ariz. Sept. 16, 2008) (“neither the Marshal Service nor the

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Court may engage in investigatory efforts on behalf of the parties to a lawsuit as this

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would improperly place the Court in the role of an advocate”) (citing Hall v. Bellmon,

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935 F.2d 1106, 1110 (10th Cir. 1991)); see also Pember v. Ryan, No. CV-11-2332 PHX-

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SMM, 2014 U.S. Dist. LEXIS 94407, at *6-9 (D. Ariz. July 11, 2014) (“As an impartial

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decision maker, it is not a federal judges’ role or responsibility to track down a

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defendant’s address so a plaintiff may serve process.”); Pliler v. Ford, 542 U.S. 225, 231

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(2004) (Federal “judges have no obligation to act as counsel or paralegal to pro se

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litigants.”).

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Even if a plaintiff fails to show good cause, the district court may also, in its

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discretion, “extend time for service upon a showing of excusable neglect.” Lemoge, 587

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F.3d at 1198. To determine whether there is “excusable neglect,” the Court considers: (1)

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the danger of prejudice to the opposing party; (2) the length of the delay and its potential

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impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted

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in good faith. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 394

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(1993); Briones v. Riviera Hotel & Casino, 116 F.3d 379, 382 (9th Cir. 1997).

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Here, the deadline for serving Defendant Johnson expired on November 27, 2016.

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To date, the Court’s docket reflects that Defendant Johnson has not been served. The

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Court has already ordered the Gila County Sheriff to provide the last known address for

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Defendant Johnson, and the USMS was unable to effect serve at that address. (Doc. 25.)

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Further, Plaintiff has failed to respond to the Court’s Order to Show Cause for the delay

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in service.

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Plaintiff has likewise failed to show excusable neglect. Plaintiff has failed to

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identify any additional steps that he has, or will, take to effect service on Defendant

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Johnson, or any additional assistance the Court can provide him in obtaining the

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information necessary to effect service. Based on the record, the Court has no reason to

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believe that Plaintiff will be able to serve Defendant Johnson. Defendant Johnson is the

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only remaining Defendant in this action. For these reasons, the Court finds that dismissal

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of this action without prejudice pursuant to Rule 4(m) is appropriate.

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Accordingly,

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IT IS ORDERED that the reference to the Magistrate Judge is withdrawn as to

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dismissal this action.

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IT IS FURTHER ORDERED that this action is dismissed without prejudice

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pursuant to Rule 4(m) of the Federal Rules of Civil Procedure and the Clerk of the Court

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shall enter judgment accordingly.

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Dated this 19th day of July, 2017.

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