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Nolan v. Corizon Health

United States District Court, D. Arizona

July 15, 2019

Tyrone Nolan, Plaintiff,
v.
Corizon Health, et al., Defendants.

          REPORT AND RECOMMENDATION

          Honorable Eileen S. Willett United States Magistrate Judge.

         The Court has reviewed the docket in this case. Defendant Malachinski's last known address for purposes of service of process has been filed under seal (Docs. 43, 63, 69). Each address filed has been consistent. The United States Marshal Service (“USMS”) attempted service unsuccessfully, noting on the Process Receipt: “Address was not correct.” (Doc. 44 at 1). Plaintiff's efforts to locate Defendant Malachinski have been unsuccessful to date. The Magistrate Judge will recommend dismissal of the case as to Defendant Malachinski without prejudice for failure to timely serve pursuant to Fed.R.Civ.P. 4(m).

         Plaintiff Tyrone Nolan filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 on February 14, 2017 (Doc. 1). On January 10, 2018, the Court issued an Order to Show Cause as to why the Complaint should not be dismissed for failure to serve Defendant Malachinski (Doc. 26). On January 31, 2018, the Court dismissed the case without prejudice as to Defendant Malachinski (Doc. 32). On July 3, 2018 the Court reinstated the case pursuant to Fed.R.Civ.P. 60(b)(6) and ordered counsel to file Defendant Malachinski's last known address under seal (Doc. 38). USMS attempted service at the address provided without success (Doc. 44). The Court then issued a second Order to Show Cause why the case should not be dismissed as to Defendant Malachinski for failure to serve (Doc. 58). On March 27, 2019, the Court extended Plaintiff's service deadline for sixty days. During that extension time, Plaintiff subpoenaed Defendant Malachinski's last known address from the Arizona Board of Osteopathic Examiners in Medicine and Surgery. The address provided under seal is the same as the address previously filed by counsel (Doc. 69-1). Service at that address was unsuccessful as noted above (Doc. 44).

         The Court's second extension of time to July 8, 2019 for service of process has passed (Doc. 68). Defendant Malachinski has not been served. He is the only remaining Defendant in the case. The Plaintiff has not requested a further extension of time to serve Defendant Malachinski. The Magistrate Judge deems a third Order to Show Cause to be unnecessary given the procedural history of this case.

         DISCUSSION

         Under Fed.R.Civ.P. 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.

         As the 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).

         If a pro se prisoner proceeding in forma pauperis has provided to 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. Id.

         In this case, the Court gave the Plaintiff more than adequate opportunity to show good cause why Defendant Malachinski should not be dismissed from the lawsuit for failure to timely serve. Despite multiple efforts to provide Plaintiff with time to locate Defendant Malachinski, service of process has been unsuccessful. Nor has the Plaintiff requested additional time past the deadline of July 8, 2019 to serve Defendant Malachinski. It is not the Court's role to assist in obtaining Defendant Malachinski's address. See Bias v. Moynihan, 508 F.3d 1212, 1219 (9th Cir. 2007) (“A district court lacks the power to act as a party's lawyer, even for pro se litigants.”); Pliler v. Ford, 542 U.S. 225, 231 (2004) (federal “judges have no obligation to act as counsel or paralegal to pro se litigants”) (italics in original); Barnes v. United States, 241 F.2d 252 (9th Cir. 1956) (noting pro se litigant does not have rights that a represented litigant does not have). Dismissal without prejudice is appropriate under these circumstances. The undersigned recommends that the Court dismiss Plaintiff's Complaint as to Defendant Malachinski without prejudice for failure to timely serve pursuant to Fed.R.Civ.P. 4(m).

         CONCLUSION

         For the reasons set forth herein, IT IS RECOMMENDED that the Court dismiss without prejudice Defendant Malachinski from Plaintiffs Complaint (Doc. 1) for failure to serve pursuant to Fed.R.Civ.P. 4(m).

         IT IS FURTHER RECOMMENDED that the Court order the Clerk of Court to terminate the case as all Defendants have been dismissed.

         This Report and 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 recommendation within which to file specific written objections with the Court. See 28 U.S.C. ยง 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 Magistrate Judge's 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 ...


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