Avalos v. Pueblo County Government et al

Filing 25

ORDER by Judge Philip A. Brimmer on 9/30/15. ORDERED: Plaintiff's claims are DISMISSED without prejudice pursuant to Fed. R. Civ. P. 4(m). ORDERED: Plaintiff's Motion for Court to Order an Administrative Closure Pursuant to D.C.COLO.LCivR 41.2 [Docket No. 20] is DENIED. (kpreu)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 15-cv-00561-PAB-KLM
LILI M. AVALOS,
Plaintiff,
v.
PUEBLO COUNTY GOVERNMENT,
VIRGINIA JIMENEZ in her individual capacity,
LIANE “BUFFIE” MCFADYEN, in her individual capacity,
SAL PACE, in his individual capacity,
TERRY HART, in his individual capacity, and
PATSY CRESSWELL, in her individual capacity,
Defendants.

ORDER

This matter is before the Court on the July 23, 2015 order [Docket No. 18] of the
magistrate judge and the Motion for Court to Order an Administrative Closure Pursuant
to D.C.COLO.LCivR 41.2 [Docket No. 20] filed by plaintiff Lili Avalos.1
On March 19, 2015, plaintiff filed this case. Docket No. 1. On July 22, 2015,
plaintiff filed a motion for extension of time to serve defendants. Docket No. 17.
Plaintiff stated that, during June and July, 2015, she was caring for her elderly parents
and had several work-related deadlines and therefore requested until September 20,
2015 to serve her complaint on defendants. Id. at 2.

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In light of plaintiff’s pro se status, the Court construes her 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).

On July 23, 2015, the magistrate judge granted plaintiff’s motion in part. Docket
No. 18 at 2. The magistrate judge’s order explained the requirements of Fed. R. Civ. P.
4(m), noting that, pursuant to Rule 4(m), plaintiff was required to serve defendants by
July 17, 2015. Id. at 2. The magistrate judge concluded that plaintiff failed to establish
good cause for failing to meet this deadline and was therefore not entitled to a
mandatory extension of time. Id. However, due to plaintiff’s pro se status and the
grounds identified in plaintiff’s motion, the magistrate judge nonetheless granted plaintiff
a permissive extension of time until August 31, 2015 to serve defendants. Id. at 3. The
magistrate judge cautioned that, “No further extensions of time to serve Defendants will
be granted absent extraordinary circumstances. Failure to comply with this deadline will
result in dismissal of Plaintiff’s claims.” Id. (emphasis omitted). Plaintiff has not served
defendants or requested an additional extension of time to do so.
On August 25, 2015, plaintiff filed a motion for appointment of counsel [Docket
No. 19], which the Court denied. Docket No. 24. On August 25, 2015, plaintiff filed a
motion seeking to administratively close this case. Docket No. 20. Plaintiff asserts that,
although she filed this case pro se, she is “not sure I can continue to represent m yself
adequately against the attorneys of Pueblo County who are not only more
knowledgeable, have more resources available to them, and have more time to devote
to the issues of my complaint.” Id. at 2. Plaintiff states that she has been unable to f ind
an attorney willing to represent her in this case on a contingent-fee basis and cannot
otherwise afford to retain an attorney. Id. at 3. Plaintiff, however, concedes that she
has experience working in local courts and with researching law, but, in light of her

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other responsibilities, is no longer confident in her ability to represent herself. Id.
Plaintiff requests that this case be administratively closed to allow her time to acquire
an attorney through the Civil Pro Bono Panel or to find an attorney willing to take her
case on a contingent-fee basis. Id.
The question before the Court is whether this case should be dismissed for
failure to serve as contemplated by the magistrate judge’s July 23, 2015 order or
whether this case should be administratively closed for the reasons set forth in plaintiff’s
motion. The Court finds that the former course of action is appropriate.
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).
Fed. R. Civ. P. 4(m).2 Plaintiff’s complaint was filed on March 19, 2015. Docket No. 1.
Thus, plaintiff was given ample time to serve defendants, yet failed to do so. 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 do not constitute
‘good cause’ for failure of timely service”). Plaintiff was granted a permissive extension
of time and warned that failure to serve defendants by August 31, 2015 would, in the
absence of extraordinary circumstances, result in the dismissal of plaintiff’s claims,
which satisfies the Court’s obligation to “first give the plaintiff an opportunity to show
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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).
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good cause, and then consider whether a permissive extension is warranted, before
proceeding to dismiss the case.” See Self v. Autoliv, ASP, 61 F. App’x 583, 584 (10th
Cir. 2003) (unpublished).
Plaintiff has not asked for an additional extension of time to serve defendants or
argued that extraordinary circumstances exist for granting an additional extension. And
the Court finds no basis to conclude that such circumstances exist. As an initial matter,
the Court is not convinced that administrative closure is appropriate where, as here,
plaintiff has failed to serve defendants within the time allowed by Rule 4(m). Although
plaintiff’s motion for administrative closure asserts that plaintiff has had difficulty
retaining an attorney to represent her in this case and asserts that plaintif f is now less
confident in her ability to represent herself, there is no basis to conclude that plaintiff is
unable to serve defendants without the assistance of an attorney. To the extent plaintiff
seeks administrative closure so that she can secure appointment of an attorney through
the Civil Bro Bono Panel, her request for appointment of counsel has been denied,
rendering this aspect of plaintiff’s motion moot. Moreover, defendants have not been
served and have not therefore had an opportunity to respond to plaintiff’s request for
administrative closure. Thus, in light of plaintiff’s failure to comply with Rule 4(m), the
Court does not find that administrative closure is appropriate in this case.
For the foregoing reasons and pursuant to the magistrate judge’s July 23, 2015
order [Docket No. 18], it is
ORDERED that plaintiff’s claims are DISMISSED without prejudice pursuant to
Fed. R. Civ. P. 4(m). It is further

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ORDERED that plaintiff’s Motion for Court to Order an Administrative Closure
Pursuant to D.C.COLO.LCivR 41.2 [Docket No. 20] is DENIED.

DATED September 30, 2015.
BY THE COURT:

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

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