Mann v. Warden et al
ORDER adopting 22 Report and Recommendation.; denying 24 Plaintiffs Motion for Permission to Add Additional Defendants. This action is DISMISSED WITHOUT PREJUDICE pursuant to Fed. R. Civ. P. (m).. Signed by Honorable Timothy D. DeGiusti on 2/10/17. (ml)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
RANDEEP SINGH MANN, M.D.,
WARDEN, Federal Transfer Center;
Case No. CIV-15-1276-D
This matter is before the Court for review of the Report and Recommendation [Doc.
No. 22] issued by United States Magistrate Judge Suzanne Mitchell pursuant to 28 U.S.C.
§ 636(b)(1)(B) and (C). Judge Mitchell recommends the dismissal without prejudice of
Plaintiff’s civil rights action pursuant to Fed. R. Civ. P. 4(m), based on findings that
Plaintiff has not shown good cause for his failure to serve any defendant for more than a
year and that a permissive extension of time for service is not warranted.
Plaintiff, a federal prisoner appearing pro se, has filed a timely written response
[Doc. No. 23]. Plaintiff first explains his failure to meet the most recent deadline of
January 11, 2017, to complete service papers, effectuate service, or seek an extension of
time for service, which was set by Judge Mitchell on September 13, 2016. See Order
[Doc. No. 21]. Plaintiff asserts the failure was due to circumstances beyond his control
(placement in special housing in December 2016 and lack of access to his legal papers) and
he made a diligent but unsuccessful effort to file a timely motion requesting an extension of
time. See Pl.’s Obj., Attach. 1 [Doc. No. 23-1]. As pertinent to Judge Mitchell’s analysis
of whether to grant a permissive extension of time for service, Plaintiff states that this
action was timely filed within two years after the alleged constitutional violations occurred
at the Federal Transfer Center. Finally, Plaintiff states the identities and addresses of the
intended defendants are still unknown to him, and he requests additional time to obtain this
information and initiate service. 1
In view of Plaintiff’s response, the Court must make a de novo determination of any
portion of the Report to which a specific written objection is made, and may accept, reject,
or modify the recommended decision, or return the matter to the magistrate judge with
instructions. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). Liberally construing
Plaintiff’s pro se filing, the Court understands that Plaintiff objects to Judge Mitchell’s
findings that he lacks good cause for a mandatory extension of time for service under
Rule 4(m), and that a permissive extension of time is not warranted. 2
The legal framework for the Court’s analysis of these issues is correctly stated by
Judge Mitchell. Her finding that Plaintiff has not demonstrated “good cause” for his lack
of service is based both on the length of time this case has been pending without service,
and Plaintiff’s failure to make any filing since he was last granted an extension of time in
In a separate filing [Doc. No. 24], Plaintiff asks to add the Attorney General of the United States
and the United States Attorney for the Western District of Oklahoma as defendants in this action. This
request is apparently based on Judge Mitchell’s discussion of the requirements of Fed. R. Civ. P. 4(i). These
are service requirements when the United States, a federal agency, or a federal employee is sued; the
naming of these officials as defendants is not required or appropriate.
Review of all other issues addressed in Judge Mitchell’s Report is waived. See Moore v. United
States, 950 F.2d 656, 659 (10th Cir. 1991); see also United States v. 2121 East 30th St., 73 F.3d 1057, 1060
(10th Cir. 1996).
September 2016. Only the latter reason is addressed by Plaintiff in his objection, and only
to the extent of his failure to meet the January 11 deadline. 3 Regarding past efforts to
accomplish service, Plaintiff states only that he has unsuccessfully tried to obtain the
names and addresses of the intended defendants and he will continue to do what he can to
get this information.
The court of appeals has not conclusively defined “good cause” for purposes of
Rule 4(m), but “has interpreted the phrase narrowly” and determined it “requires a greater
showing than ‘excusable neglect.’” Broitman v. Kirkland (In re Kirkland), 86 F.3d 172,
174-75 (10th Cir. 1996); see Despain v. Salt Lake Area Metro Gang Unit, 13 F.3d 1436,
1439 (10th Cir. 1994); Putnam v. Morris, 833 F.2d 903, 905 (10th Cir. 1987). The Tenth
Circuit has held that “inadvertence or mistake of counsel or ignorance of the rules” is
insufficient. Putnam, 833 F.2d at 905 (internal quotation omitted); see Kirkland, 86 F.3d
at 176. Further, “[t]he plaintiff who seeks to rely on the good cause provision must show
meticulous efforts to comply with the rule.” Kirkland, 86 F.3d at 176; Despain, 13 F.3d
While Plaintiff has now explained his delay in making another request for additional
time to complete service, the Court finds that Plaintiff has failed to establish good cause for
his lack of progress during the past 13 months to serve any defendant. 4 Plaintiff has made
Plaintiff admits he did not attempt service or make any filing by January 11, 2017, but shows
that he did try to file a timely motion for an extension of time by that date.
Plaintiff was first authorized to serve Defendants on January 5, 2016, and was allowed 120 days
to complete service. See Order Requiring Service & Special Report [Doc. No. 14].
no effort even to serve the persons entitled to notice under Rule 4(i)(1); Plaintiff indicates
he was saving Rule 4(i) service for a later “stage” of the litigation. See Pl.’s Obj. [Doc.
No. 23], p.3. More importantly, Plaintiff does not inform the Court what he has done to
identify the individuals whom he intends to sue nor what more he will do in the immediate
future. While the Court is not unsympathetic to Plaintiff’s situation, he cannot idly wait
for information to be supplied to him and simultaneously establish a diligent effort to
comply with the time limit for service.
Turning to consider a discretionary extension of time for service under Rule 4(m),
Plaintiff’s only objection to Judge Mitchell’s analysis of this issue actually cuts against
Plaintiff asserts this action was timely filed within the applicable statute of
limitations. Accepting this to be true, a dismissal without prejudice will not operate to bar
a future Bivens claim; a refiled action would be preserved by Oklahoma’s savings statute,
Okla. Stat. tit. 12, § 100. See, e.g., Roberts v. Barreras, 484 F.3d 1236, 1242-43 (10th Cir.
2007) (applying state tolling statute in Bivens action); see also Eastom v. City of Tulsa, 783
F.3d 1181, 1183 (10th Cir. 2015) (“Oklahoma savings statute applies to § 1983 claims”).
For the reasons stated by Judge Mitchell, the Court finds that an extension of time to effect
service of process is unwarranted under the circumstances and that a dismissal without
prejudice under Rule 4(m) is appropriate.
IT IS THEREFORE ORDERED that the Report and Recommendation [Doc.
No. 22] is ADOPTED. This action is DISMISSED WITHOUT PREJUDICE pursuant to
Fed. R. Civ. P. (m). A separate judgment of dismissal shall be entered.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Permission to Add
Additional Defendants [Doc. No. 24] is DENIED.
IT IS SO ORDERED this 10th day of February, 2017.
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