United States District Court, D. Arizona
Shalek E. Modee, Plaintiff
Corizon Health, et al., Defendants.
REPORT & RECOMMENDATION RE
DISMISS NATASHA, GOWEY, VINSON, AND
F. METCALF, UNITED STATES MAGISTRATE JUDGE
before the Court are two motions which seek to extend time to
serve, regarding Defendants Natasha, Gowey and Vinson (Doc.
128) and Defendant Johnson (Doc. 129). 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 Defendants Corizon, Ryan,
Buchholz, Rainey, Gertz, Smith, Gay, Flake, Weigel, Demery,
Chamberlain, Romero, and Scott. Service is still outstanding
on Defendants Tana, Hawley, and Nieblas. Service on Defendant
Loyd was returned unexecuted, and an Order to Show Cause
regarding dismissal of Loyd has issued. That leaves
Defendants Natasha, Gowey, Vinson, and Johnson
unserved and without pending service.
attempts at service were returned unexecuted on
Defendants Natasha (Doc. 25) and Johnson (Doc. 26) on June
14, 2019, on Defendant Gowey (Doc. 31) on June 17, 2019, and
on Defendant Vinson (Doc. 50) on July 22, 2019. On
Plaintiff's motions (Docs. 27 and 48), a last known
address was ordered from Corizon Inc. for Natasha, Gowey and
Johnson (Order 6/24/19, Doc. 38) and Vinson (Order 7/23/19,
Doc. 60). Last known home addresses were provided under seal
on July 12, 2019 (Docs. 44, 45, 46) and August 6, 2019 (Doc.
attempts at service were again attempted on Natasha,
Gowey, and Johnson. However, the U.S Marshals Service
confirmed to the Court that the address provided for Vinson
was the same address where service had previously been
attempted and where the earlier return reported the
“*Address Not Valid* current resident stated she has
lived there for over 1 Yr.” (See Order 8/8/19,
Doc. 81 (quoting Return (Doc. 50)).) Accordingly, service on
Vinson was not again ordered. Service was again returned
unexecuted on July 26, 2019 on Defendants Natasha (Doc. 66)
and Gowey (Doc. 67), on August 26, 2019 on Defendant Johnson
then again sought an order directing Corizon to provide last
known addresses for, inter alia, Defendants Vinson
and Gowey. (Docs. 62 and 83.) This request was denied because
“Plaintiff proffers no reason to believe that Corizon
will now have a better address.” (Order 8/13/19, Doc.
to show cause then issued. On September 10, 2019,
the Court issued an Order to Show Cause (Doc. 114) directing
Plaintiff to show cause why Johnson should
not be dismissed for failure to timely serve. Plaintiff
responded (Doc. 122), urging the merits of his claims against
Johnson. The Court found no showing of good cause under Rule
4(m) to extend the time to serve Johnson. (Order 9/16/19,
Doc. 126). Plaintiff then filed the instant motion to extend
(“Motion for Reconsideration”) (Doc. 129).
September 16, 2019, the Court issued an Order to Show Cause
(Doc. 125) directing Plaintiff to show cause why Defendants
Natasha, Gowey and Vinson should not be
dismissed for failure to timely serve. Plaintiff responded by
filing the instant motion (“Memorandum Showing
Cause”) (Doc. 128), seeking an extension of time to
serve Natasha, Gowey and Vinson.
of his motions (Docs. 128 and 129), Plaintiff reiterates his
past attempts at service on these defendants, and argues his
October 3, 2019, Defendants have responded (Doc. 140) arguing
that the Court's Order (Doc. 126) already determined Plaintiff
had failed to show good cause to extend the time to serve
Johnson, and arguing Plaintiff has failed to proffer any
reason to believe further attempts at service on the other
defendants will be successful, given the lack of success
after last known addresses were provided.
has not replied.
Court's Order filed September 16, 2019 (Doc. 126) did not
make a prejudicial determination whether Johnson should be
dismissed, only that Plaintiff's response had not shown
good cause in his Response (Doc. 122) to the order to show
cause, having asserted only the merits of his claims as a
basis for avoiding dismissal. Thus, that Order is not
determinative on whether Johnson must now be dismissed.
Consequently, the undersigned construes Plaintiff's
motion as not seeking reconsideration of the prior Order, but
as a motion to extend time to serve Johnson.