Allen v. Ryan et al

Filing 21

ORDER ADOPTING 15 Report and Recommendation of the Magistrate Judge. IT IS FURTHER ORDERED denying Plaintiff's Motion for Leave to Amend his Complaint (Doc. 12 ) and denying Plaintiffs Motion for Additional Time toServe Defendant Jeremy Denoyer (Doc. 10 ). Plaintiff's Complaint and this action are dismissed. Signed by Judge Susan R Bolton on 6/29/15. (LSP)

1

NOT FOR PUBLICATION

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Donald Alphanso Allen,
Plaintiff,

10
11

ORDER

v.

12

No. CV-14-08235-PCT-SRB

Charles L. Ryan, et al.,

13

Defendants.

14
15

The Magistrate Judge to whom this prisoner civil rights case was referred

16

recommended that Plaintiff’s request to be given more time to attempt personal service

17

on the only remaining defendant Jeremy Denoyer be denied, that Plaintiff’s Motion for

18

Leave to Amend his Complaint be denied and that Plaintiff’s Complaint and this action

19

be dismissed without prejudice for failure to serve Defendant Jeremy Denoyer. Plaintiff

20

filed timely written objections to the Report and Recommendation. Plaintiff objects to not

21

being given more time to serve Jeremy Denoyer and objects to the recommendation that

22

his Motion for Leave to Amend be denied on the grounds that he has the right to amend

23

at least once. Plaintiff’s objections will be overruled, and the Court will follow the

24

recommendations of the Magistrate Judge to deny both of Plaintiff’s motions and to

25

dismiss this case without prejudice.

26

In discussing the failure to serve Defendant Jeremy Denoyer, the Magistrate Judge

27

noted that Plaintiff had previously filed a prisoner civil rights suit in 2013 that appeared

28

to arise out of the identical incident. In 2013 Plaintiff alleged this incident occurred on

1

April 26, 2012. In the present Complaint the incident is identically described but Plaintiff

2

alleged that it occurred on April 26, 2014. In his objections Plaintiff has clarified that the

3

reference to 2014 was a typographical error and the correct date of the incident giving

4

rise to his claim was April 26, 2012.

5

The prior lawsuit was screened and the claim against only Defendant Jeremy

6

Denoyer remained after screening. In that case three attempts to locate Defendant

7

Denoyer to effect service of process failed, even after the Court ordered his former

8

employer to disclose his last known address and directed the Marshal to serve at that

9

address. When service could not be made the case was dismissed.

10

Almost six months have elapsed since the Court directed that Plaintiff return a

11

service packet to the United States Marshal Service with information to serve Defendant

12

Denoyer. Service has been returned unexecuted. In his objections, Plaintiff suggests a

13

host of avenues at his disposal to attempt to locate Defendant Denoyer but provides no

14

evidence to the Court that he has pursued these avenues or that any of these avenues

15

would likely locate Defendant Denoyer for service. The objections to the

16

recommendation that the Motion to Extend Time for Service be denied are overruled.

17

Plaintiff also objects to the recommendation that his Motion for Leave to Amend

18

be denied but justifies this solely on the grounds that as a general rule leave to amend

19

should be freely given and that denying leave to amend for no reason is an abuse of

20

discretion. The proposed amendment simply attempts to add back in the same claims

21

against the other defendants that have already been determined by this Court in 2013 and

22

in 2015 to fail to state a claim upon which relief can be granted.

23

amendment is futile and the objection to the Magistrate Judge’s recommendation is

24

overruled.

The proposed

25

There is yet another reason to dismiss Plaintiff’s complaint. Plaintiff concedes that

26

the incident that gives rise to this lawsuit occurred on April 26, 2012. This lawsuit was

27

filed on December 8, 2014, two and one half years after the incident occurred. While §

28

1983 of Title 42 of the United States Code does not include its own statute of limitations,

-2-

1

federal courts apply the statute of limitations governing personal injury claims in the

2

forum state. Wilson v. Garcia, 471 U.S. 261, 280 (1985). TwoRivers v. Lewis, 174 F.3d

3

987, 991 (9th Cir. 1999). A.R.S. § 12-542 establishes a two-year limitations period for

4

personal injury claims. Now that Plaintiff has clarified his typographical error and admits

5

that the incident occurred more than two and one half years prior to the filing of this

6

lawsuit, it is apparent that the statute of limitations expired on April 26, 2014. This

7

complaint was not filed until December 8, 2014. The nature of the allegations that gave

8

rise to the claim are that Defendant Denoyer pepper sprayed Plaintiff in the face on April

9

26, 2012 resulting in vision impairment and the need for medical treatment. There can be

10

no claim that Plaintiff was not aware of the incident giving rise to his claim on or about

11

the date that it occurred.

12
13
14
15
16
17
18
19

IT IS ORDERED overruling Plaintiff’s Objections to the Report and
Recommendation of the Magistrate Judge in this case.
IT IS FURTHER ORDERED adopting the Report and Recommendation of the
Magistrate Judge as the Order of this Court.
IT IS FURTHER ORDERED denying Plaintiff’s Motion for Leave to Amend his
Complaint. (Doc. 12)
IT IS FURTHER ORDERED denying Plaintiff’s Motion for Additional Time to
Serve Defendant Jeremy Denoyer. (Doc. 10)

20

IT IS FURTHER ORDERED that Plaintiff’s Complaint and this action are

21

dismissed both for failure to serve Defendant Denoyer and because of the expiration of

22

the applicable statute of limitations.

23

Dated this 29th day of June, 2015.

24
25
26
27
28

-3-