United States District Court, D. Arizona
Shalek E. Modee, Plaintiff
Corizon Health, et al., Defendants.
REPORT & RECOMMENDATION RE DISMISS LOYD
F. Metcalf, United States Magistrate Judge
has failed to timely serve Defendant Loyd. This matter is
before the undersigned magistrate judge on referral for
pretrial proceedings pursuant to 28 U.S.C. § 636(b)(1).
Because the appropriate resolution of motions is potentially
dispositive of some of Plaintiff's claims, the
undersigned proceeds by way of a Report & Recommendation
to the referring district judge, pursuant to 28 U.S.C. §
commenced this action on January 28, 2019, by filing his
Complaint (Doc. 1). On May 14, 2019, the Court screened the
Complaint, dismissed various claims and defendants, and
ordered service on and answers from Defendants Corizon, Ryan,
Buchholz, Johnson, Rainey, Natasha, Gertz, Tana, Smith,
Hawley, Gay, Flake, Weigel, Demery, Gowey, Chamberlain,
Romero, Scott, Nieblas, Loyd, and Vinson.
has since been completed on and/or answers filed by
Defendants Corizon, Ryan, Buchholz, Rainey, Gertz, Smith,
Gay, Flake, Weigel, Demery, Chamberlain, Romero, Scott and
Neiblas. Service is still outstanding on Defendants Tana, and
Hawley. A separate Report & Recommendation has been
issued regarding motions to exted time to served Defendants
Natasha, Gowey, Vinson, and Johnson, recommending they be
dismissed. That leaves Defendant Loyd.
attempts at service were returned unexecuted on
Defendant Loyd on July 22, 2019 (Doc. 51). On Plaintiff's
motion (Doc. 48), a last known address was ordered from
Corizon Inc. for Loyd (Order 8/13/19, Doc. 88) A last known
home address was provided under seal on August 27, 2019
(Docs. 98, 103). However, service on Loyd had been previously
attempted at a residential address provided to the U.S.
Marshals Service by Corizon. The Court declined to order
service until the Court could confirming with the Marshals
that they had not attempted service at the address now
provided. (Order 8/28/19, Doc. 107.) Plaintiff moved for
service at the address, and the Court's staff had been
advised that service was previously attempted at the sealed
address provided, but only once. Accordingly, and in light of
the delay, personal service at the home address was ordered.
(Order 9/16/19, Doc. 123.)
attempts at service were again attempted on Loyd.
However, service was returned unexecuted on October 10, 2019
October 22, 2019, the Court gave Plaintiff 14 days to respond
to an order to show cause why Loyd should
not be dismissed pursuant to Fed. R. Civ. Proc. 4(m) for
failure to timely serve. (Order 10/22/19, Doc. 157.)
has not responded.
Rule of Civil Procedure 4(m) provides:
If a defendant is not served within 120 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. But if the plaintiff shows good
cause for the failure, the court must extend the time for
service for an appropriate period.
Civil Rule 16.2(b)(2)(B), which governs prisoner civil rights
suits, provides that service shall be completed by the
“maximum date to effect service, pursuant to Rule 4 of
the Federal Rules of Civil Procedure, or sixty (60) days from
filing of service order, whichever is later.” Under
these rules, Plaintiff had through July 15, 2019 to complete
Rule 4(m) does not establish a cutoff for service, but rather
a time after which consideration of dismissal becomes
appropriate, the normal standards of ...