Montoya et al v. Colvin

Filing 16

ORDER Adopting in part 12 Report and Recommendation. Plaintiffs complaint is dismissed without prejudice. Plaintiff has 30 days to re-file this action. Signed by Judge James C. Mahan on 7/3/2014. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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DEBBIE MONTOYA,

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2:13-CV-1505 JCM (CWH)

Plaintiff(s),

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v.

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CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,

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Defendant(s).

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ORDER

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Presently before the court are the report and recommendation of Magistrate Judge Hoffman

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(doc. # 12), recommending that pro se plaintiff Debbie Montoya’s complaint (doc. # 1) be dismissed.

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Plaintiff has filed objections (doc. # 13)1, to which defendant Carolyn W. Colvin, acting

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commissioner for social security, has not responded.

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I.

Background

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This case arises from the judicial review of an administrative action by the commissioner of

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social security denying plaintiff’s request for disability benefits on behalf of Laurie J. Wainwright.

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That decision became final when the appeals council denied plaintiff’s request for review on June

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21, 2013. On August 7, 2013, plaintiff requested an extension of time to commence a civil action,

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James C. Mahan
U.S. District Judge

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Plaintiff filed a second objection (doc. # 14) on March 28, 2014, identical to her first objection (doc. # 13)
filed on March 20, 2014.

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to which no response from the appeals council has been indicated.

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On August 21, 2013, plaintiff commenced this action by filing a motion/application for leave

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to proceed in forma pauperis and attaching a complaint (doc. # 1), which the court denied without

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prejudice (doc. # 3). On September 3, 2013, plaintiff paid the filing fee and a summons was issued

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to the social security administration’s office. On December 3, 2013, plaintiff filed certified mail

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receipts indicating that the social security administration’s office and attorney general’s office in

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Washington, D.C. were served. The next day, plaintiff filed a motion for clerk’s default (doc. # 7),

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which the court denied without prejudice for failure to properly serve the defendant (doc. # 9). In that

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order, the court granted plaintiff thirty days to cure her failure pursuant to Fed. R. Civ. P. 4(i)(4).

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On February 6, 2014, plaintiff filed her summons returned executed. (Doc. # 11). Due to an

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inadvertent error, plaintiff’s summons returned executed was not entered on the docket until March

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18, 2014. As a result, the magistrate judge amended his initial report and recommendation (doc. #

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10) based on the new evidence.

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In his amended report and recommendation (doc. # 12), Magistrate Judge Hoffman found that

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plaintiff’s summons returned executed was not acceptable proof that service was accomplished based

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on her failure to provide a server’s affidavit attesting that the defendant had been served. (Doc. # 12).

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The magistrate judge concluded that plaintiff failed to accomplish service despite the extension of

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time to do so. Accordingly, the magistrate judge recommends that plaintiff’s complaint be dismissed

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with prejudice.

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Plaintiff makes one objection, which appears to address the magistrate judge’s initial report

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and recommendation.

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II.

Legal Standard

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A party may file specific written objections to the findings and recommendations of a United

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States magistrate judge made pursuant to Local Rule IB 1–4. 28 U.S.C. § 636(b)(1)(B); LR IB 3–2.

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Upon the filing of such objections, the district court must make a de novo determination of those

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portions of the report to which objections are made. 28 U.S.C. § 636(b)(1)(C); LR IB 3–2(b). The

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district court may accept, reject, or modify, in whole or in part, the findings or recommendations

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James C. Mahan
U.S. District Judge

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made by the magistrate judge. Id.

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III.

Discussion

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In her objection, plaintiff argues that she served the “attorney general of Nevada,” upon

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receiving notice that she failed to properly serve the defendant. However, the attorney general of

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Nevada is not among the parties that plaintiff must serve pursuant to the Federal Rules of Civil

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Procedure. Plaintiff filed another summons returned executed (doc. # 15) on March 28, 2014,

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indicating that plaintiff served the attorney general of Nevada. This is not acceptable proof that

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plaintiff accomplished service on the U.S. Attorney for the District of Nevada.

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Moreover, plaintiff asserts that she filed her summons returned executed (doc. # 11) on

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February 6, 2014, but due to an inadvertent error it was not entered on the docket until March 18,

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2014. From what the court can discern, plaintiff is objecting to the magistrate judge’s initial report

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and recommendation (doc. # 10), which was issued before plaintiff’s summons returned executed

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(doc. # 11) was docketed. The magistrate judge cured this discrepancy in his amended report and

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recommendation. (Doc. # 12).

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In his amended report and recommendation, the magistrate judge reiterated his previous

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instructions to plaintiff regarding proper service pursuant to Fed. R. Civ. P. (4)(i) and proper proof

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of service pursuant to Fed. R. Civ. P. (4)(l), which plaintiff still appears to misunderstand.

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Fed. R. Civ. P. (4)(i) governs service of the United States, its agencies, corporations, officers,

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or employees. “To serve a United States agency or corporation, or United States officer or employee

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sued only in an official capacity, a party must serve the United States and also send a copy of the

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summons and of the complaint by registered or certified mail to the agency, corporation, officer, or

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employee.” Fed. R. Civ. P. (4)(i)(2).

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James C. Mahan
U.S. District Judge

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Based on plaintiff’s summons returned executed (docs. # # 6 and 11), it appears that plaintiff

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is attempting to serve the requisite parties by registered or certified mail. To accomplish this pursuant

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to Fed. R. Civ. P. (4)(i)(1), plaintiff must send a copy of the summons and complaint by registered

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or certified mail to:

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(A) The United States Attorney for the District of Nevada,
specifically to the civil-process clerk at the United States
attorney’s office;

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(B) The Attorney General of the United States at Washington,
D.C.; and

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(C) The Social Security Administration.
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See Fed. R. Civ. P. (4)(i)(1)(A)-(C).

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Additionally, plaintiff must prove service pursuant to Fed. R. Civ. P. (4)(l)(1), which states:

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“Affidavit Required. Unless service is waived, proof of service must be made to the court. Except for

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service by a United States marshal or deputy marshal, proof of service must be by the server’s

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affidavit.”

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As the magistrate judge correctly found, plaintiff has not satisfied these requirements. Thus,

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plaintiff has not properly served the defendant or provided acceptable proof of such. Plaintiff has not

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provided a server’s affidavit that the U.S. Attorney for the District of Nevada, the Attorney General

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of the U.S. in Washington, D.C., or the social security administration has been served.

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Accordingly, after conducting a de novo review of the portions of the report and

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recommendation that were objected to, the court finds good cause appears to adopt the magistrate

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judge’s report and recommendation in part. Plaintiff’s complaint will be dismissed without prejudice.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the report and

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recommendation of Magistrate Judge Hoffman (doc. # 12) are ADOPTED in part.

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IT IS FURTHER ORDERED that plaintiff’s complaint (doc. # 1) is dismissed without

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prejudice.

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James C. Mahan
U.S. District Judge

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IT IS FURTHER ORDERED that plaintiff has thirty days (30) to re-file this action. Further
failure to properly serve may result in dismissal with prejudice.
DATED July 3, 2014.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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