Modee v. Corizon Health

          REPORT & RECOMMENDATION RE DISMISS NATASHA, GOWEY, VINSON, AND JOHNSON

          JAMES F. METCALF, UNITED STATES MAGISTRATE JUDGE

         Pending 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. § 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 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.

         First 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. 76).

         Second 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 (Doc. 95).

         Plaintiff 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. 88.)

         Orders 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).

         On 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.

         In both of his motions (Docs. 128 and 129), Plaintiff reiterates his past attempts at service on these defendants, and argues his diligence.

         On October 3, 2019, Defendants have responded (Doc. 140) arguing that the Court's Order (Doc. 126)^[1] 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.

         Plaintiff has not replied.

         The 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.

         B. ...