Fuller v. State of Kansas, Department of Children & Families

Filing 83

MEMORANDUM AND ORDER - Plaintiff has shown good cause in response to the court's Show Cause Order (Doc. 70 ). It is ordered that the Clerk's Office and U.S. Marshals effectuate service at the addresses provided in plaintiff's "Affidavit to Serve Defendants in Their Individual Capacities" (Doc. 72 ). Signed by District Judge Daniel D. Crabtree on 10/31/2018. Mailed to pro se party Clara Fuller by regular mail. (hl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CLARA R. FULLER,
Plaintiff,
v.

Case No. 16-2415-DDC-JPO

STATE OF KANSAS, DEPARTMENT
OF CHILDREN & FAMILIES, et al.,
Defendants.
____________________________________

MEMORANDUM AND ORDER
On September 13, 2018, the court entered an Order directing plaintiff to show cause why
the court should not dismiss the claims against the individual defendants in this case for failure to
prosecute. Doc. 70. Plaintiff filed a timely response titled “Affidavit to Serve Defendants in
Their Individual Capacities.” Doc. 72. Now, the court considers plaintiff’s response. For
reasons explained below, the court finds that plaintiff has shown good cause and declines to
dismiss plaintiff’s claims against the individual defendants for failure to prosecute under Federal
Rule of Civil Procedure 41(b).
I.

Facts
Proper service has eluded plaintiff. Plaintiff filed suit in June 2016, alleging that

defendants—the Kansas Department of Children and Families (“DCF”) and four individual
employees—had discriminated against her. Doc. 33. Two years later, in a March 2018 Order,
the court found that plaintiff never had served the DCF employees in their individual capacities
properly. Doc. 47 at 4. At that time, the court directed the Clerk of the Court to prepare and
issue summonses for the DCF employees in their individual capacities. Id. at 5. The court also

ordered plaintiff to provide the Clerk with any information that would allow the Marshals
Service to serve the DCF employees personally or at their homes. Id. Plaintiff did not respond.
In September 2018, the court ordered plaintiff to show cause, in writing, why the court
should not dismiss the claims against the individual defendants for failure to prosecute. Doc. 70.
Plaintiff responded in time. Doc. 72. Plaintiff represents that she never received the March 2018
Order, and thus, she did not know the court had asked her to provide residential addresses to
serve defendants. Doc. 72 at 1. But, upon receipt of the court’s Show Cause Order, plaintiff
researched online and found addresses for the four individual defendants. Id. at 1–2. Plaintiff
advises that she cannot be sure the addresses are correct, but that each defendant worked in
Kansas when plaintiff filed suit. Id. at 2.
II.

Legal Standard
Under Fed. R. Civ. P. 41(b), “a district court may dismiss an action with prejudice if the

plaintiff fails to comply with [the Federal Rules of Civil Procedure] or any order of court.”
Olsen v. Mapes, 333 F.3d 1199, 1204 (10th Cir. 2003) (alteration in original) (internal citations
omitted). To decide if dismissal is warranted, the Tenth Circuit directs the court to consider the
following factors: “(1) the degree of actual prejudice to the defendant; (2) the amount of
interference with the judicial process; (3) the culpability of the litigant; (4) whether the court
warned the party in advance that dismissal of the action would be a likely sanction for
noncompliance; and (5) the efficacy of lesser sanctions.” Id. (quoting Ehrenhaus v.
Reynolds, 965 F.2d 916, 921 (10th Cir. 1992)) (further citation omitted). The court, finding the
third factor most relevant, addresses it first.

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III.

Discussion
As for culpability of the litigant, the Circuit has explained that when a plaintiff proceeds

in forma pauperis, the district court is required to serve process for plaintiff. Id. at 1204 (first
citing 28 U.S.C. § 1915(d); then citing Fed R. Civ. P. 4(c)(2)). So, “good cause exists to excuse
a plaintiff’s failure to serve where the plaintiff is proceeding in forma pauperis and is therefore
entitled to rely on service by the U.S. Marshal.” Id. (collecting cases). But, good cause does not
exist where defective service results from plaintiff’s inadequate or inaccurate information or lack
of diligence. See Searles v. Werholtz, No. 06-3198-JAR, 2010 WL 4861123, at *2 (D. Kan.
Nov. 16, 2010) (citations omitted). In Searles, our court found that a plaintiff had neither been
diligent nor made a good faith effort to assist the Marshals Service’s efforts to effect service, in
part, because plaintiff failed to attempt to locate the unserved defendants in response to the
court’s Order to Show Cause. See id. (comparing Olsen v. Mapes, 333 F.3d 1199, 1205 (10th
Cir. 2003), where “plaintiffs demonstrated ‘sincere efforts’ to comply with service rules and . . .
the record was ‘replete with Plaintiffs’ attempts to comply’ with service rules,” id. at *3 n.28
(quoting Mapes, 333 F.3d at 1205)).
Here, Ms. Fuller proceeds pro se in forma pauperis (Doc. 4), so as the court has
explained, she is entitled to rely on the U.S. Marshals to make service. Ms. Fuller contends that
she did not comply with the court’s March 2018 Order to help effectuate service because she did
not receive it.1 Doc. 72 at 1. But, upon receipt of the court’s Show Cause Order, plaintiff
responded promptly to it and provided the residential addresses for the four individual

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The docket indicates multiple instances where plaintiff claims she did not receive filings after registering as
a pro se participant who would receive electronic notification in the case. See, e.g., Doc. 64 (“[P]laintiff explains
that she has had trouble receiving and printing defendants’ motions . . . .”). In response, the court noted that
“[w]hile the court agrees that litigants should follow the filings in their case closely, the prevailing legal authorities
counsel against rigid application of procedural rules.” Id. Plaintiff did withdraw from electronic noticing on May
23, 2018, and since that time, all filings have been sent to Ms. Fuller by regular mail.

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defendants. Id. at 1–2. And, plaintiff also explained that, though she cannot ensure the
addresses are correct, all the defendants worked in Kansas when she filed suit. Id. at 2. So,
unlike the plaintiff in Searles, Ms. Fuller has responded to the court’s Show Cause Order.
Second, although plaintiff is entitled to rely on service by the U.S. Marshal, she has
demonstrated sincere efforts to comply with the court’s orders. The Tenth Circuit found it
persuasive that the plaintiffs in Mapes had included a “Proof of Service” attachment on their
filings, which indicated that those papers were mailed to the defendants or their counsel. Mapes,
333 F.3d at 1205. Here, Ms. Fuller consistently has included a “Certificate of Service,” which
indicates that she has served copies of her filings on counsel for the individual defendants. The
court finds that this factor weighs against dismissing plaintiff’s claims.
The remaining factors do not favor a different result. First, as the court has observed, “it
seems undisputed that all defendants know about the current lawsuit,” (Doc. 47 at 5), and so the
prejudice to defendants factor does not favor dismissal. Second, it is true that the judicial
process has suffered delay—Ms. Fuller filed this case in June 2016—and so, this factor favors
dismissal. But, third, the efficacy of lesser sanctions is moot, as Ms. Fuller responded in time to
the court’s Show Cause Order and responded with appropriate information. The court thus
finds—under the Ehrenhaus factors—that the court should not dismiss plaintiff’s claims.
The court emphasizes that Ms. Fuller must bear responsibility to discover and submit
information necessary to effectuate service. See Searles, 2010 WL 4861123, at *4. So, if the
addresses Ms. Fuller provided are incorrect, she has a continuing duty to find and provide correct
addresses. Because Ms. Fuller has provided addresses for the defendants, the court does not
consider whether plaintiff also has complied with Kan. Stat. Ann. § 60-304(h) in her “Affidavit

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to Serve Defendants in Their Individual Capacities.” Kan. Stat. Ann. § 60-304(h); see also id. at
§ 53-601.2
IV.

Conclusion
For the reasons explained, the court finds that plaintiff has shown good cause and

declines to dismiss plaintiff’s claims against the individual defendants for failure to prosecute
under Rule 41(b).
IT IS THEREFORE ORDERED that plaintiff has shown good cause in response to the
court’s Show Cause Order (Doc. 70).
IT IS FURTHER ORDERED that the Clerk’s Office and U.S. Marshals effectuate
service at the addresses provided in plaintiff’s “Affidavit to Serve Defendants in Their Individual
Capacities” (Doc. 72).
IT IS SO ORDERED.
Dated this 31st day of October, 2018, at Kansas City, Kansas.

s/ Daniel D. Crabtree______
Daniel D. Crabtree
United States District Judge

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The court directed plaintiff to do one of two things: provide the Clerk with either addresses of the
individual defendants or file an affidavit providing that she does not know where the individual defendants reside
but stating that plaintiff believes they work in Kansas. Doc. 47 at 5. In her response to the court’s Show Cause
Order, plaintiff attempts to do both. See Doc. 72 at 1–2. The court only addresses plaintiff’s response providing the
addresses of individual defendants in this Order. Should these addresses prove incorrect, plaintiff either must
provide accurate addresses to the U.S. Marshal or follow the procedures outlined in Kan. Stat. Ann. § 60-304.

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