Lewis v. United States of America

Filing 16

ORDER ADOPTING 11 REPORT AND RECOMMENDATION AND DISMISSING 1 MOTION FOR RETURN OF PROPERTY WITHOUT PREJUDICE. Case is closed. Signed by Judge Rosanna Malouf Peterson. (AY, Case Administrator) (Service of Notice on parties not registered as users of the Court CM/ECF system accomplished via USPS mail.)

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FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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Jan 31, 2020
SEAN F. MCAVOY, CLERK

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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TRACY A. LEWIS,
Movant,

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v.
UNITED STATES OF AMERICA,
Respondent.

NO: 2:19-MC-42-RMP
ORDER ADOPTING REPORT AND
RECOMMENDATION AND
DISMISSING MOTION FOR
RETURN OF PROPERTY WITHOUT
PREJUDICE

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Magistrate Judge John T. Rodgers filed a Report and Recommendation on

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January 8, 2020, recommending that Movant’s Motion for Return of Property be

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dismissed without prejudice for failure to properly serve Respondent. ECF No. 11.

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Objections to the Report and Recommendation were due on or before Wednesday,

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January 22, 2020. Movant filed a letter that was construed as an objection before the

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deadline, stating that he has complied with the requirements of Federal Rule of Civil

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Procedure 4. Alternatively, Movant explains that he needs clearer instructions on

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how to serve Respondent in this matter.

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ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING
MOTION FOR RETURN OF PROPERTY WITHOUT PREJUDICE ~ 1

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If a party files a timely objection to a magistrate judge’s recommendation, the

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district court must make a de novo determination regarding each portion of the

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recommendation to which the party objected. United States v. Howell, 231 F.3d

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615, 621 (9th Cir. 2000); 28 U.S.C. § 636(b)(1)(C). The district court judge “may

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accept, reject, or modify, in whole or in part, the findings or recommendations made

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by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). “The judge may also receive

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further evidence or recommit the matter to the magistrate judge with instructions.”

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Id.

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The Court considers whether Movant properly served Respondent in this

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matter. On October 16, 2019, Judge Rodgers granted Movant’s application to

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proceed in forma pauperis (“IFP”), pursuant to 28 U.S.C. § 1915. ECF No. 7. A

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party proceeding IFP may request that the United States Marshal, or another official

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appointed by the court, serve all process on his or her behalf. Fed. R. Civ. P. 4(c);

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see also 28 U.S.C. § 1915(d). However, the court has no duty to direct court

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officials to serve process in IFP cases, unless the IFP party makes such a request.

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Boudette v. Barnette, 923 F.2d 754, 757 (9th Cir. 1991) (explaining that “[a]n IFP

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plaintiff must request that the marshal serve his complaint before the marshal will be

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responsible for such service”).

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Here, Movant did not request specifically that service be made on his behalf

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by a court-appointed official, such as the U.S. Marshal. While Movant stated that he

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needed help and a more thorough explanation of his responsibilities, which the Court
ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING
MOTION FOR RETURN OF PROPERTY WITHOUT PREJUDICE ~ 2

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could construe as a request for service to be made on his behalf, this request was not

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made until after the deadline for service had expired. See ECF No. 10; Fed. R. Civ.

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P. 4(m). Therefore, Movant was not entitled to have process served by a court-

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appointed official in this matter.

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Movant did not serve Respondent within the 90-day deadline as set forth in

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Rule 4(m). See ECF No. 15 at 3. Additionally, it appears from the Certificate of

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Service that Movant did not mail a summons. See id. Therefore, Movant did not

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follow the procedures for serving the United States, as explained in Rule 4(i).

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Movant’s objection does not demonstrate good cause for failure to comply with

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these requirements. See ECF No. 15.

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Accordingly, IT IS HEREBY ORDERED:

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1. The Report & Recommendation at ECF No. 11, is adopted in its entirety.

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2. Movant’s Motion for Return of Property, ECF No. 1, is DENIED.

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3. This case is DISMISSED without prejudice for lack of service.

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IT IS SO ORDERED. The District Court Clerk is directed to enter this

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Order, provide a copy to Movant, and close this case.
DATED January 31, 2020.
s/ Rosanna Malouf Peterson
ROSANNA MALOUF PETERSON
United States District Judge

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ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING
MOTION FOR RETURN OF PROPERTY WITHOUT PREJUDICE ~ 3