Staples v. United States Department of Justice et al
ORDER denying 22 Motion for Default Judgment; adopting Report and Recommendations re 26 Report and Recommendation. Plaintiff is granted an additional 60 days or until 11/24/2017 to locate and serve Defendant Gonzalez.. Signed by Honorable Timothy D. DeGiusti on 10/18/2017. (mb)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA, et al.,
Case No. CIV-16-711-D
This matter is before the Court for review of the Report and Recommendation issued
September 25, 2017, by United States Magistrate Judge Shon T. Erwin pursuant to 28
U.S.C. § 636(b)(1)(B)-(C). Judge Erwin recommends the denial of Plaintiff’s Motion for
Default Judgment because Defendant “Correctional Officer” Gonzalez has not been
properly served with process. Judge Erwin also grants Plaintiff an additional 60 days to
locate and serve Defendant Gonzalez. Judge Erwin previously determined upon initial
screening, and the Court agreed, that the Complaint states a Bivens1 claim only against
Defendant Gonzales in his individual capacity. See 8/23/16 R&R [Doc. No. 10]; see also
9/21/16 Order [Doc. No. 11].
Plaintiff, who appears pro se, has filed a timely “Motion for Reconsideration That
the Defendant Has Been Served With the Summons and Complaint” [Doc. No. 27]. In
light of Plaintiff’s pro se status, this filing is liberally construed as an objection to Judge
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
Erwin’s Report. The Court must make a de novo determination of portions of the Report
to which a specific objection is made, and may accept, modify, or reject the recommended
decision. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).
Plaintiff concedes the United States Marshals Service unsuccessfully attempted to
serve Defendant Gonzalez personally. Plaintiff contends that service on others – Deborah
A. Locke, an attorney assigned to the Federal Transfer Center in Oklahoma City, Oklahoma
(where Defendant Gonzalez worked), the Federal Bureau of Prisons, the Department of
Justice, and the United States Attorney – should be sufficient. Plaintiff primarily argues
that Ms. Locke is authorized by federal regulations to receive service for Defendant
Gonzalez. Plaintiff is mistaken. This action is brought against Defendant Gonzalez in
his individual capacity, and he must be personally served with process. See Fed. R. Civ.
P. 4(i)(3). To date, such service has not been accomplished. The Court is aware of no
federal regulation, and Plaintiff cites none, authorizing a federal agency or attorney to
accept service on behalf of an individual.
Therefore, upon de novo consideration, the Court fully concurs in Judge Erwin’s
finding that Defendant Gonzalez has not been properly served and is not in default.
Review of all other issues addressed in the 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).
IT IS THEREFORE ORDERED that the Report and Recommendation [Doc.
No. 26] is ADOPTED. Plaintiff’s Motion for Default [Doc. No. 22] is DENIED.
IT IS FURTHER ORDERED that Plaintiff is granted an additional 60 days from the
date of the Report and Recommendation, or until November 24, 2017, to locate and serve
Defendant Gonzalez. The case remains under referral to Judge Erwin.
IT IS SO ORDERED this 18th day of October, 2017.
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