McIntyre v. NaphCare Inc. et al

Filing 23

ORDER adopting 18 Report and Recommendation; plaintiff's complaint is hereby DISMISSED without prejudice. Signed by Judge James C. Mahan on 3/16/2020. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DWIGHT MCINTYRE,

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Case No. 2:16-CV-2107 JCM (BNW)
Plaintiff(s),

ORDER

v.
NAPHCARE, INC., et al.,

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Defendant(s).

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Presently before the court is Magistrate Judge Leen’s report and recommendation
(“R&R”). (ECF No. 18). No objections have been filed and the time to do so has passed.

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Judge Leen recommends dismissing the instant action for pro se plaintiff Dwight

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McIntyre’s failure to comply with the Federal Rules of Civil Procedure and the court’s order

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regarding service of defendants Frank Ryan, Brian Poirier, and Ted Hanf. Id. at 1 (referring to

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ECF No. 10).

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The court screened plaintiff’s complaint and found that it stated one plausible claim for

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deliberate indifference to serious medical need in violation of the Eighth Amendment against

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defendants Drs. Frank Ryan, Brian Poirier, and Ted Hanf. (ECF No. 4). The attorney general

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was ordered to send letters to Drs. Ryan, Poirier, and Hanf at their last known addresses. (ECF

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No. 6). The attorney general attempted to send a letter to Dr. Hanf, but it was returned as non-

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deliverable. (ECF No. 9). He also attempted to find Drs. Ryan and Poirier but was informed that

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neither of the doctors had a current or former employment relationship with the NDOC. Id.

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The court then entered a service order, ordering that “service must be perfected within

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ninety (90) days from the date of this order.” (ECF No. 10). Plaintiff was provided with three

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USM-285 forms and was told to mail the USM the required forms with the relevant information

James C. Mahan
U.S. District Judge

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to each defendant.

Id.

Plaintiff was specifically ordered that if any service attempt was

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unsuccessful and he wished to have service attempted again on an unserved defendant, “then a

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motion must be filed with the court identifying the unserved defendant(s) and specifying a more

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detailed name and/or address for said defendant(s).” Id.

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Plaintiff did not file timely proof of service and the clerk’s office issued a standard notice

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of intent to dismiss pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. (ECF No.

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14). Plaintiff filed a response stating that he incorrectly mailed the forms to the court instead of

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the USM1. (ECF No. 15)

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Rule 4 states that a defendant must be served within 90 days after a complaint is filed.

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Fed. R. Civ. P. 4(m). However, the court is required to extend the time for service is a plaintiff

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shows good cause for the failure to timely serve. Id. As a general matter, a showing of good

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cause requires more than simple inadvertence, mistake, or ignorance of the procedural rules.

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Martin v. Longbeach, 246 F.3d 674 (9th Cir. 2000). “Ignorance of court rules does not constitute

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excusable neglect, even if the litigant appears pro se.” Kocsis v. Delta Air Lines, Inc., 963 F.

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Supp. 2d 1002, 1011 (D. Haw 2013) (quoting Swimmer v. IRS, 811 F.2d 1343, 1345 (9th Cir.

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1987)). An incarcerated plaintiff is entitled to rely on the USM for service of the summons and

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complaint only when he has provided the USM with accurate and adequate information to

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complete service. Puett v. Blanford, 912 F. 2d 270, 275 (9th Cir. 1990).

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Plaintiff has not completed service of the summons and complaint on defendants Ryan,

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Poirier, or Hanf as required by Rule 4(m) and the service order (ECF No. 10). Plaintiff’s

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response does not show good cause as to why service has not been completed. Plaintiff allowed

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the case to remain dormant for 111 days after the service order. Once the 4(m) notice was

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entered, plaintiff then said he incorrectly mailed the forms. Plaintiff attempted to correct his

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mistake, but summons was returned unexecuted for Dr. Hanf. (ECF No. 16). Service was not

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attempted for Drs. Ryan and Poirier. The case then went dormant again for seven more months,

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until plaintiff filed a request for waiver of service form. (ECF No. 17). Plaintiff never filed a

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motion seeking an extension of time for service or requesting another manner of service.

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James C. Mahan
U.S. District Judge

The court docket report does not support plaintiff’s claims.
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Additionally, plaintiff’s failure to complete service cannot be blamed on the USM. The

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record shows that plaintiff failed to provide the USM with reliable information to serve Dr. Hanf,

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and he failed to provide the USM with any information to serve Drs. Ryan or Poirier.

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Finally, plaintiff’s service waiver request is not relief that the court may enter. Federal

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courts lack personal jurisdiction over a defendant unless the defendant has been properly served

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in accordance with Rule 4. Crowley v. Bannister, 734 F.3d 967, 974–975 (9th Cir. 2013).

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Without proper service to Drs. Ryan, Poirier, and Hanf, the court lacks personal jurisdiction over

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the defendants and cannot grant plaintiff’s request.

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This court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). Where a party timely objects

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to a magistrate judge’s report and recommendation, then the court is required to “make a de novo

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determination of those portions of the [report and recommendation] to which objection is made.”

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28 U.S.C. § 636(b)(1).

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Where a party fails to object, however, the court is not required to conduct “any review at

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all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149

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(1985). Indeed, the Ninth Circuit has recognized that a district court is not required to review a

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magistrate judge’s report and recommendation where no objections have been filed. See United

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States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review

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employed by the district court when reviewing a report and recommendation to which no

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objections were made).

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Nevertheless, this court conducted a de novo review to determine whether to adopt the

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recommendation of the magistrate judge. Upon reviewing the recommendation and attendant

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circumstances, this court finds good cause appears to adopt the magistrate judge’s findings in

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full.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, and DECREED that Judge Leen’s R&R

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(ECF No. 18) be, and the same hereby is, ADOPTED.

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James C. Mahan
U.S. District Judge

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IT IS FURTHER ORDERED that plaintiff’s complaint is hereby DISMISSED without
prejudice.

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The clerk is instructed to enter judgment and close the case accordingly.

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DATED March 16, 2020.

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__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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