United States District Court, D. Arizona
REPORT AND RECOMMENDATION
S. WILLETT, UNITED STATES MAGISTRATE JUDGE
THE HONORABLE JAMES A. TEILBORG, UNITED STATES DISTRICT
a civil rights action filed pro se by state prisoner Walter
C. Goedecke (“Plaintiff”) pursuant to 42 U.S.C.
§ 1983. For the reasons discussed herein, the
undersigned recommends that the Court dismiss Defendant
Barnett without prejudice for failure to timely serve in
accordance with Federal Rule of Civil Procedure 4(m).
Federal Rule of Civil Procedure 4(m), “[i]f a defendant
is not served within 90 days after the complaint is filed,
the court-on motion or on its own after notice to the
plaintiff-must dismiss the action without prejudice against
that defendant or order that service be made within a
specified time.” However, “if the plaintiff shows
good cause for the failure, the court must extend the time
for service for an appropriate period.” Id.
Ninth Circuit Court of Appeals has explained, “Rule
4(m) requires a two- step analysis in deciding whether or not
to extend the prescribed time period for the service of a
complaint.” In re Sheehan, 253 F.3d 507, 512
(9th Cir. 2001) (citing Fed.R.Civ.P. 4(m) and Petrucelli
v. Bohringer & Ratzinger, GMBH, 46 F.3d 1298, 1305
(3d Cir. 1995)). “First, upon a showing of good cause
for the defective service, the court must extend the time
period. Second, if there is no good cause, the court has the
discretion to dismiss without prejudice or to extend the time
period.” Id. The Ninth Circuit has found it
“unnecessary, however, to articulate a specific test
that a court must apply in exercising its discretion under
Rule 4(m), ” noting “only that, under the terms
of the rule, the court's discretion is broad.”
Id. at 513. Yet “no court has ruled that the
discretion is limitless. In making extension decisions under
Rule 4(m) a district court may consider factors
‘like a statute of limitations bar, prejudice to the
defendant, actual notice of a lawsuit, and eventual
service.'” Efaw v. Williams, 473 F.3d
1038, 1041 (9th Cir. 2007) (emphasis added).
pro se prisoner proceeding in forma pauperis has
provided to the U.S. Marshals Service (the
“USMS”) sufficient information to effectuate
service on a defendant, the USMS' failure to effect
service is “automatically good cause” to extend
the service deadline. Walker v. Sumner, 14 F.3d
1415, 1422 (9th Cir. 1994) (quoting Sellers v. United
States, 902 F.2d 598, 603 (7th Cir. 1990)),
abrogated on other grounds by Sandin v. Connor, 515
U.S. 472 (1995). But where a prisoner fails to provide the
USMS with accurate and sufficient information to effect
service of the summons and complaint, a court's sua
sponte dismissal of the unserved defendant(s) is appropriate.
as to Defendant Barnett was returned to the Court unexecuted.
(Doc. 13). On January 22, 2018, the Court issued an Order
requiring Plaintiff to show cause why Defendant Barnett
should not be dismissed from this action without prejudice
for failure to serve pursuant to Fed.R.Civ.P. 4(m). (Doc.
18). The Court set February 6, 2018 as the deadline for
Plaintiff's response. (Id.). As of the date of
this Report and Recommendation, Plaintiff has not responded.
Court has warned Plaintiff that the failure to timely serve
Defendant Barnett may result in a dismissal. (Doc. 6 at 9).
To reiterate, an incarcerated pro se plaintiff is responsible
for furnishing the USMS with sufficient information to serve
a defendant. See Walker, 14 F.3d at 1422. The
undersigned recommends that the Court dismiss Defendant Beard
from this action without prejudice for failure to timely
on the foregoing, IT IS RECOMMENDED that the
Court dismiss without prejudice Defendant Barnett from this
action without prejudice for failure to timely effect service
in accordance with Federal Rule of Civil Procedure 4(m).
recommendation is not an order that is immediately appealable
to the Ninth Circuit Court of Appeals. Any notice of appeal
pursuant to Fed. R. App. P. 4(a)(1) should not be filed until
entry of the District Court's judgment. The parties shall
have fourteen days from the date of service of a copy of this
Report and Recommendation within which to file specific
written objections with the Court. See 28 U.S.C.
§ 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties
have fourteen days within which to file a response to the
objections. Failure to file timely objections to the Report
and Recommendation may result in the acceptance of the Report
and Recommendation by the District Court without further
review. Failure to file timely objections to any factual
determinations of the Magistrate Judge may be considered a
waiver of a party's right to appellate review of the