Spears v. State of Hawaii et al
ORDER Dismissing Action With Respect to Thomas L. Read. "The court declines to grant Spears leave to serve Read. Instead, the court orders this action dismissed without prejudice with respect to Read. Because no claims remain for adjudication, the court directs the clerk of court to enter judgment in favor of Defendants and to close this case." Signed by JUDGE SUSAN OKI MOLLWAY on 12/1/17. (cib, )CERTIFICATE OF SERVICEParticipants registered to rece ive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
THE STATE OF HAWAII, HAWAII
DEPARTMENT OF PUBLIC SAFETY; )
TANI DYDASCO; THOMAS L. READ, )
Civ. No. 12-00218 SOM/RLP
ORDER DISMISSING ACTION WITH
RESPECT TO THOMAS L. READ
ORDER DISMISSING ACTION WITH RESPECT TO THOMAS L. READ
Plaintiff Everett Spears asserts that he was held in
prison 73 days longer than he should have been.
On April 24,
2012, Spears filed the Complaint in this matter, asserting claims
under 42 U.S.C. § 1983 and under state law against the State of
Hawaii Department of Public Safety and its employees, Tani
Dydasco and Thomas L. Read.
See ECF No. 1.
See ECF No. 1.
May 31, 2012, this court dismissed all of Spears’s claims except
for the damage claims asserted against Dydasco and Read in their
See ECF No. 13.
On November 8, 2017, the
court dismissed the remaining claims with respect to Dydasco and
issued an order to show cause why the action should not be
dismissed with respect to Read pursuant to Rule 4(m) of the
Federal Rules of Civil Procedure.
See ECF No. 111.
17, 2017, Spears responded to the order to show cause, asking for
leave to serve Read.
See ECF No. 113.
Because Spears has failed
to demonstrate good cause for his failure to timely serve Read,
and because the court declines to exercise its discretion to
allow service under the circumstances presented, the court
dismisses the action with respect to Read.
Rule 4(m) of the Federal Rules of Civil Procedure
governs the issue of timely service, providing in relevant part,
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.
Rule 4 (m) contains mandatory and discretionary
Rule 4(m) requires a district court to grant an
extension of time to serve a defendant when the plaintiff shows
good cause for the delay.
See Efaw v. Williams, 473 F.3d 1038,
1040 (9th Cir. 2007); see also in re Sheehan, 253 F.3d 507, 512
(9th Cir. 2001).
“Good cause” for the delay means “at a minimum
. . . excusable neglect.”
In re Sheehan, 253 F.3d at 512
(alterations, quotation marks, and citation omitted).
Spears lacks “good cause” for the delay in serving
Read has not been served even though the Complaint was
filed more than five years ago.
Although this case was stayed at
Spear’s request, Spears acknowledges that he has delayed service
for 23 months while the case was not stayed.
See ECF No. 113,
PageID # 835 (“There is only a 23 month delay excluding the time
of the 4 year Court approved stay.”).
As noted in the order to
show cause, Spears had previously told the court that he had been
unable to serve Read because he did not know Read’s address, but
had conceded that he had not sought Read’s address through
In counsel’s declaration, ECF No. 113-1, she states
that she had previously requested Read’s address but was not told
what the address was.
But Spear’s counsel does not indicate when
she asked for the address.
If, for example, she asked for the
address in 2012 but failed to follow up thereafter, Spears can
hardly argue that that lack of diligence shows “good cause” for
Spears’s failure to serve Read may have been because he
believed Read was no longer part of this action.
In a June 16,
2017, status report, for example, Spears stated, “Thomas L. Reed
[sic] and the Dpt. Of Public Safety are no longer parties in this
law suit as the Court dismissed them in Summary Judgment Order
ECF No. 91, PageID # 635.
On August 9, 2017,
Spears similarly stated, “The persons involved who did not
release him included Tani Dydasco, the remaining Defendant.”
No. 97, PageID # 711.
This misunderstanding with respect to
whether Read was still a potential defendant was not justified by
the record and provides further grounds for a finding that Spears
lacked “good cause” for the delay in serving Read.
When “good cause” is lacking for a delay in serving a
defendant, Rule 4(m) permits a district court to exercise “broad
discretion” to grant an extension of time to serve the defendant.
See Williams, 473 F.3d at 1040; see also In re Sheehan, 253 F.3d
at 513 (when good cause is lacking, a district court has the
discretion “to extend the time for service or to dismiss the
action without prejudice”).
In exercising its “broad
discretion,” a district court may consider factors “like a
statute of limitations bar, prejudice to the defendant, actual
notice of a lawsuit, and eventual service.”
Williams, 473 F.3d
at 1041 (quotation marks and citation omitted).
declines to exercise its discretion to allow service as to Read
under the circumstances.
Although Spears contends that this court should
exercise its discretion and allow service because Read likely had
notice of this action, that contention is unconvincing.
the record reflects that the State of Hawaii moved to dismiss the
claims against Read in his official capacity, as those were
claims against the State of Hawaii.
Nothing in the record
establishes that Read actually had notice of this action.
does the record demonstrate that Read, who had been sued in
similar cases, “absconded and left the State of Hawaii.”
113, PageID # 834.
“moved to Utah.”
The record simply establishes that Read
See ECF No. 113-2, PageID # 839.
The factor best supporting the granting of leave for
Spears to serve Read at this late juncture is that the applicable
limitations periods for Spears’s claims has likely run.
years have passed since Read’s alleged conduct of sending a
letter to Spears telling Spears that the Department of Public
Safety would be asking a judge for clarification as to the
pretrial credit that Spears was entitled to, as well as sending
such a letter to the judge.
This length of time actually weighs
against allowing late service, as Read is likely to be prejudiced
by the fading of memories of the events is issue.
This delay was
caused, at least in part, by Spears’s failure to ask for Read’s
address or to follow up on any request made.
Given the age of
this case and Spears’s lack of diligence is seeking to serve
Read, the court declines to exercise its discretion and allow
The court notes that, even if it were to allow service,
that exercise would likely be futile.
For the reasons set forth
in this court’s order of November 8, 2017, Read would likely be
immune from the claims asserted.
That factor also supports this
court’s refusal to exercise its discretion to allow service of
For the foregoing reasons, the court declines to grant
Spears leave to serve Read.
Instead, the court orders this
action dismissed without prejudice with respect to Read.
Because no claims remain for adjudication, the court
directs the clerk of court to enter judgment in favor of
Defendants and to close this case.
IT IS SO ORDERED.
Honolulu, Hawaii, December 1, 2017.
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
Spears v. State of Hawaii Department of Public Safety, Civ. No. 12-00218 SOM/RLP;
ORDER DISMISSING ACTION WITH RESPECT TO THOMAS L. READ
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