Turner v. Falk et al

Filing 49

ORDER. ORDERED that the Recommendation of Magistrate Judge [Docket No. 45] isACCEPTED. ORDERED that plaintiff's claims against Ms. Dummit, Teacher I are DISMISSED without prejudice by Judge Philip A. Brimmer on 05/27/14.(jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer

Civil Action No. 13-cv-02957-PAB-MJW
GARY WAYNE TURNER,
Plaintiff,
v.
FRANCES FALK, Warden,
ROBERT BUTCHER, Major,
JACKSON, Lieutenant,
INFANTE, Lieutenant, and
MS. DUMMIT, Teacher I,
Defendants.

ORDER

This matter is before the Court on the Recommendation of United States
Magistrate Judge (the “Recommendation”) [Docket No. 45] filed on April 14, 2014. The
magistrate judge recommends that, pursuant to Federal Rule of Civil Procedure 4(m),
the Court dismiss without prejudice claims against defendant Ms. Dummit, Teacher I.
Docket No. 45 at 2. Plaintiff Gary Wayne Turner filed a timely objection. Docket No.
47. The Court will “determine de novo any part of the magistrate judge’s disposition
that has been properly objected to” by plaintiff. Fed. R. Civ. P. 72(b)(3). In the absence
of a proper objection, the Court may review a magistrate judge’s recommendation
under any standard it deems appropriate. See Summers v. Utah, 927 F.2d 1165, 1167
(10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) (“[i]t does not

appear that Congress intended to require district court review of a magistrate’s factual
or legal conclusions, under a de novo or any other standard, when neither party objects
to those findings”). In light of plaintiff’s pro se status, the Court construes his filings
liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Hall v. Bellmon, 935 F.2d
1106, 1110 & n.3 (10th Cir. 1991).
The facts of this case have been set forth elsewhere and will not be restated
here except as relevant to resolving plaintiff’s objection. See Docket No. 12. On
October 28, 2013, plaintiff filed his complaint against defendants and “(Teacher) Ms.
Sharp.” Docket No. 1. On December 30, 2013, plaintiff filed an amended complaint.
Docket No. 11. On January 8, 2014, plaintiff’s claims against defendant Sharp were
dismissed. Docket No. 12 at 3-4. On February 11, 2014, the magistrate judge issued
an order to show cause why Ms. Dummit should not be dismissed pursuant to Fed. R.
Civ. P. 4(m) for failure to serve Ms. Dummit and for failure to prosecute. Docket No. 26
at 2. The magistrate judge noted that it appeared Ms. Dummit was no longer a
Colorado Department of Corrections employee and that attempts to serve her at her
last known address were unsuccessful. Id. at 1. Plaintiff responded to the order to
show cause by arguing that failure to obtain proper service does not warrant dismissal
of a cause of action. Docket No. 33 at 3. On April 14, 2014, the magistrate judge held
a show cause hearing where the parties discussed the identity of Ms. Sharp and the
identity of Ms. Dummit. Docket No. 44. The magistrate judge noted that plaintiff failed
to supply an address for Ms. Dummit and recommends that the claims against Ms.
Dummit be dismissed without prejudice pursuant to Fed. R. Civ. P. 4(m) and
D.C.COLO.LCivR 41.1.
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Plaintiff asserts that, at the April 14, 2014 hearing, counsel for defendants Falk,
Butcher, and Jackson informed plaintiff and the magistrate judge that Ms. Dummit’s
maiden name is Sharp and that Ms. Dummit and Ms. Sharp are the same person.
Docket No. 47 at 2. Plaintiff claims that Ms. Dummit used her maiden name to deceive
plaintiff and the Court in order to “avoid prosecution.” Id. Plaintiff claims that, when he
brought this action, he believed that Ms. Sharp and Ms. Dummit were different people.
Id. Plaintiff filed a motion for a subpoena duces tecum requesting that the Limon
Correctional Facility and the Colorado Department of Corrections provide
documentation related to Ms. Sharp/Dummit’s employment. Id. at 5; see also Docket
No. 46 at 4.
Plaintiff’s objection primarily reiterates the legal and factual arguments advanced
in his response to the order to show cause. Cf. Docket No. 33. More importantly,
plaintiff’s objections fail to specifically identify any error in the Recommendation. Thus,
plaintiff’s objections are not sufficiently specific to “enable [ ] the district judge to focus
attention on those issues – factual and legal – that are at the heart of the parties’
dispute.” United States v. One Parcel of Real Property Known As 2121 East 30th St.,
73 F.3d 1057, 1059 (10th Cir. 1996). However, even if reviewed de novo, the Court
finds no error in the Recommendation.
The Federal Rules of Civil Procedure state:
If a defendant is not served within 120 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. This
subdivision (m) does not apply to service in a foreign country under Rule 4(f)
or 4(j)(1).
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Fed. R. Civ. P. 4(m).1 Plaintiff does not dispute that Ms. Dummit was not served within
the proper window and that he was afforded an opportunity to show cause why his
claims against Ms. Dummit should not be dismissed. Cf. Self v. Autoliv, ASP, 61 F.
App’x 583, 584 (10th Cir. 2003) (“The district court had an obligation . . . to give
[plaintiff] an opportunity to show why his action should not be dismissed.”). Thus, the
only remaining issue before the Court is whether plaintiff showed good cause for his
failure to serve Ms. Dummit. On this point, plaintiff’s showing is insufficient. Although
plaintiff’s motion seeking a subpoena duces tecum is pending, plaintiff fails to explain
why he failed to file such a motion or otherwise make attempts to ascertain Ms.
Dummit’s address prior to the show cause hearing. Plaintiff’s allegation that Ms.
Dummit attempted to deceive him by using her maiden name is without support.
Moreover, plaintiff does not explain why Ms. Dummit’s maiden name had any effect on
plaintiff’s ability to supply the Court with her address or was otherwise necessary to
effectuate service.2 See In re Kirkland, 86 F.3d 172, 176 (10th Cir. 1996) (“Pro se
litigants must follow the requirements of [Rule 4(m) and] inadvertence or negligence
alone does not constitute ‘good cause’ for failure of timely service”). Thus, the Court

1

Rule 4 was amended in 1993 and Rule 4(j) was recodified as Rule 4(m).
Espinoza v. United States, 52 F.3d 838, 840 (10th Cir. 1995).
2

Plaintiff cites Fletcher v. Dist. Ct. In and For Jefferson Cnty., 322 P.2d 96 (Colo.
1958), in support of his argument that failure to serve a defendant does not warrant
dismissal of a cause of action. Docket No. 47 at 5. Fletcher holds that an error in a
summons does not necessarily require the dismissal of a cause of action, but does not
otherwise authorize a plaintiff to maintain an action indefinitely without serving a
defendant. 322 P.2d at 96. Moreover, the Court is not bound by Colorado law on this
issue, but by the Federal Rules of Civil Procedure. Thus, plaintiff’s citation to Fletcher
does not support his argument.
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finds that plaintiff has failed to show good cause for his failure to serve Ms. Dummit.
Plaintiff was given 168 days to effectuate service of Ms. Dummit prior to the
show cause hearing, yet failed to do so. The Court declines to afford an additional
“permissive extension of time” as contemplated by Rule 4(m). See Espinoza v. United
States, 52 F.3d 838, 842 (10th Cir. 1995).
For the foregoing reasons, it is
ORDERED that the Recommendation of Magistrate Judge [Docket No. 45] is
ACCEPTED. It is further
ORDERED that plaintiff’s claims against Ms. Dummit, Teacher I are DISMISSED
without prejudice.

DATED May 27, 2014.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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