Modee v. Corizon Health

          REPORT & RECOMMENDATION RE DISMISS LOYD

          James F. Metcalf, United States Magistrate Judge

         Plaintiff 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. § 636(b)(1)(B).

         A. BACKGROUND

         Plaintiff 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.

         Service 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.

         First 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.)

         Second attempts at service were again attempted on Loyd. However, service was returned unexecuted on October 10, 2019 (Doc. 143).

         On 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.)

         Plaintiff has not responded.

         B. APPLICABLE STANDARD

         Federal 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.

         Local 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 service.

         Because 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 ...