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Brownen v. Giovani

United States District Court, D. Arizona

September 18, 2014

Tommy Lee Brownen, Plaintiff,
v.
Unknown Giovani, Defendant.

REPORT AND RECOMMENDATION FOR DISMISSAL WITHOUT PREJUDICE FOR FAILURE TO SERVE DEFENDANT

MARK E. ASPEY, Magistrate Judge.

On March 20, 2014, Plaintiff filed a prisoner civil rights complaint, a motion seeking a temporary restraining order, and a motion for leave to proceed in this matter in forma pauperis. In the complaint Plaintiff alleged Defendant was deliberately indifferent to Plaintiff's serious medical needs with regard to prescription pain medication. In an order (Doc. 6) entered April 22, 2014, the Court granted Plaintiff's motion to proceed in this matter in forma pauperis, denied his motion for a temporary restraining order, and ordered Plaintiff to return a service packet for Defendant to the Court on or before May 12, 2014.

The service order at Doc. 6 states:

If Plaintiff fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet , 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with any order of the Court).

The service order further states:

Plaintiff must complete and return the service packet to the Clerk of Court within 21 days of the date of filing of this Order. The United States Marshal will not provide service of process if Plaintiff fails to comply with this Order.
(6) If Plaintiff does not either obtain a waiver of service of the summons or complete service of the Summons and Complaint on Defendant within 120 days of the filing of the Complaint or within 60 days of the filing of this Order, whichever is later, the action may be dismissed. Fed.R.Civ.P. 4(m); LRCiv 16.2(b)(2)(B)(i).

The Court's service order of April 22, 2014, required Plaintiff to effect service of process on Defendant on or before July 18, 2014. In an order to show cause (Doc. 8) entered June 30, 2014, Plaintiff was warned that his failure to acquire a waiver of service from Defendant or to complete service of process by July 18, 2014, would result in the dismissal of claims or defendants pursuant to Rule 4(m), Federal Rules of Civil Procedure, and Rule 16.2(b)(2)(B), of the United States District Court for the District of Arizona Local Rules of Civil Procedure. The Court noted that Plaintiff had failed to return a service packet to the Court and allowed Plaintiff until July 18, 2014, to show cause for his failure to return a service packet to the Court in compliance with the Court's order of April 22, 2014.

On July 15, 2014, Plaintiff docketed another application for leave to proceed in this matter in forma pauperis. See Doc. 10. The application was denied as moot because Plaintiff was previously granted permission to proceed in forma pauperis. On July 21, 2014, the Court again ordered Plaintiff to show cause, by August 8, 2014, for his failure to return a service packet to the Court and why the matter should not be dismissed for the failure to serve Defendant. Plaintiff did not respond to the order to show cause at Doc. 12.

The Federal Rules of Civil Procedure provide that the plaintiff in a civil action is to effect service of a summons and the complaint upon the defendant(s) within 120 days after filing the complaint with the court. Fed.R.Civ.P. 4(m). Additionally, Rule 4(m), Federal Rules of Civil Procedure provides that:

[i]f service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.

Dismissal of a civil action for failure to serve is a matter within the Court's discretion. See, e.g., Puett v. Blandford , 912 F.2d 270, 273 (9th Cir.1990). In cases involving plaintiffs proceeding in forma pauperis, the United States Marshal, upon order of the Court, is authorized to serve the summons and the complaint. See 28 U.S.C. ยง 1915(c); Boudette v. Barnett , 923 F.2d 754, 757 (9th Cir. 1991).

[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the summons and complaint and... should not be penalized by having his action dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to perform his duties....

Puett , 912 F.2d at 275. So long as the prisoner has furnished the information necessary to identify the defendant, the Marshal's failure to effect service "is automatically good cause within the meaning of Rule 4(j)." Sellers v. United States , ...


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