Nolan #118453 v. Corizon Health et al

Filing 73

ORDER adopting in whole Judge Willett's Report and Recommendation (Doc. 71 ) and overruling Plaintiff's Objections thereto (Doc. 72 ). FURTHER ORDERED dismissing without prejudice the Complaint in this matter as against the final remaining Defendant Malachinski (Doc. 1 ) and directing the Clerk of Court to close this matter. See document for complete details. Signed by Judge John J Tuchi on 8/14/2019. (RMV)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Tyrone Nolan,
Plaintiff,

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ORDER

v.

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No. CV-17-00476-PHX-JJT (BSB)

Corizon Health, et al.,

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Defendants.

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At issue is the Report and Recommendation (“R&R”) (Doc. 71) submitted in this

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matter by United States Magistrate Judge Eileen S. Willett, recommending that the Court

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dismiss this matter without prejudice for failure to serve the last remaining Defendant.

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Plaintiff timely filed Objections to the R&R, which the Court also has considered.

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(Doc. 72.)

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Plaintiff instituted this matter exactly two and a half years ago, and still has yet to

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effect service of process on Defendant Malachinski. This Court ordered dismissal of the

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Complaint against Defendant in January 2018 after nearly a year had elapsed without

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service but reopened the matter to allow Plaintiff another opportunity and more time to

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serve. It since granted yet more time. All of this history is thoroughly detailed in Judge

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Willett’s R&R, as are the time requirements for service under Fed. R. Civ. P. 4(m), and

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the caselaw providing the requirements for extension of those time limits—which the

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Court has allowed repeatedly, to no avail.

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In his Objections, Plaintiff argues that service has failed through no fault of his

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own. (Doc. 72 at 1.) The Court understands Plaintiff is in custody and therefore his

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personal involvement is thus limited, and it does not blame Plaintiff for some act or

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omission. But that is not the test. Rule 4 places responsibility on a Plaintiff for proper

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service of process on all defendants within the time limits prescribes, including any

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extensions authorized by the Court according to law. And as Judge Willett’s R&R

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correctly states, the Court will not assume those responsibilities for an incarcerated party

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and cannot afford such party greater rights or service than another party not incarcerated.

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Thus, even where Plaintiff is not “at fault” for a failure to serve Defendant, he is

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responsible for meeting the service requirement, and if he cannot meet that responsibility,

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the consequence is dismissal without prejudice.

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In his Objections, Plaintiff also asks the Court for an additional 30 days to effect

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service, as well as the opportunity to serve by alternative means. The Court notes again

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that after 1) two and a half years and multiple extended opportunities to effect that

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service, 2) United States Marshal Service assistance in physical service and 3) Court

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Order requiring former Defendant Corizon to provide Defendant Malachinski’s last

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known address, service still has not been successful. The Court is firmly persuaded that

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yet another extension is unlikely to yield a different result under the circumstances.

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IT IS THREFORE ORDERED adopting in whole Judge Willett’s Report and
Recommendation (Doc. 71) and overruling Plaintiff’s Objections thereto (Doc. 72).

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IT IS FURTHER ORDERED dismissing without prejudice the Complaint in this

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matter as against the final remaining Defendant Malachinski (Doc. 1) and directing the

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Clerk of Court to close this matter.

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Dated this 14th day of August, 2019.

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Honorable John J. Tuchi
United States District Judge

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