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Slover v. Gila County Board of Supervisors

United States District Court, D. Arizona

July 19, 2017

Martin Douglas Slover, Plaintiff,
v.
Gila County Board of Supervisors, et al., Defendants.

          ORDER

          James A. Teilborg Senior United States District Judge

         Plaintiff has failed to timely serve Defendant Johnson, the only remaining Defendant in this matter after screening, and has failed to respond to the Court's Order to Show Cause why his claims against Defendant Johnson should not be dismissed for failure to serve. Therefore, as detailed below, the Court will dismiss this action without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.

         I. Background

         On August 29, 2016, Plaintiff, who is confined in the Arizona State Prison Complex-Tucson, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983. (Doc. 1.) On September 21, 2016, the Court screened the Complaint, ordered Defendant Johnson to answer Count One, dismissed the remaining claims and Defendants, and ordered Plaintiff to complete and return a service packet for Defendant Johnson to the Clerk of Court within 21 days of the date of the Order. (Doc. 5 at 10.) On November 7, 2016, the Clerk received a completed service packet as to Defendant Johnson, and on November 8, 2016, forwarded the service packet to the United States Marshal Service ("USMS") for service. On January 13, 2017, a Process Receipt and Return was filed with the notation "Returned unexecuted. Does not work at Gila River Sheriffs Office any longer." (Doc. 13.)

         On January 25, 2017, the Court ordered Plaintiff, on or before February 8, 2017, to either provide a current work address for Defendant Johnson or show cause why his claims against Defendant Johnson should not be dismissed for failure to effect service. (Doc. 16.) On February 1, 2017, Plaintiff filed an untitled document, which the Court construed as a Response to the Court's Order to Show Cause. (Doc. 18.) In his Response, Plaintiff states his case should not be dismissed because "I am going to try and locate [Defendant Johnson's] address [through] my mother" and "I don[']t know how to get [Defendant Johnson's] address from in prison." (Id.)

         On February 16, 2017, Plaintiff filed an untitled document, which the Court construed as a Motion for assistance in locating Defendant Johnson. (Doc. 19.) In his Motion, Plaintiff indicated that he is unable to locate Defendant Johnson's address, and he requested the Court assist him. On February 28, 2017, the Court granted Plaintiffs request and ordered the Gila County Sheriff, J. Adam Shepherd, to file with the Court a current work address for Defendant Johnson, if still employed by the Gila County Sheriffs Office, or, if not, the last known home address for Defendant Johnson, under seal and ex parte. (Doc. 20.)

         On March 20, 2017, J. Adam Shepherd, the Gila County Sheriff, filed a Notice with the Court indicating that Defendant Johnson is no longer employed by the Gila County Sheriffs Office, and provided, under seal, the last known home address for Defendant Johnson. (Doc. 23.) Upon receipt of the address, the Clerk of Court completed a service packet for Defendant Johnson and forwarded it to the USMS for service. On May 18, 2017, a Process Receipt and Return was filed with the notation "Deputy went to address provided, residence appeared vacant. Spoke to neighbors on both sides and they stated they had no[t] seen any one there in 2 years." (Doc. 25.)

         On June 5, 2017, the Court ordered Plaintiff, on or before June 19, 2017, to either provide a current address for Defendant Johnson, or otherwise show cause why his claims against Defendant Johnson should not be dismissed for failure to effect service pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. (Doc. 26.) To date, Plaintiff has not provided a current address for Defendant Johnson or otherwise responded to the Court's Order to Show Cause.

         II. Discussion

         The Court's September 21, 2016 Screening Order states the following:

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).
(8) If Plaintiff does not either obtain a waiver of service of the summons or complete service of the Summons and Complaint on a Defendant within 90 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 as to each Defendant not served. Fed.R.Civ.P. 4(m); LRCiv l6.2(b)(2)(B)(ii).

(Doc. 5 at 10-11.)

         Rule l6.2(b)(2)(B)(ii) of the Local Rules of Civil Procedure, which governs prisoner civil rights suits, provides that service shall be completed by the maximum date to effect service under Rule 4(m) of the Federal Rules of Civil Procedure, "or sixty (60) days from filing of the service order, whichever is later." Rule 4(m) of the Federal Rules of Civil ...


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