Opinion
CV 22-00240 PHX MTL (CDB)
06-15-2022
Gene Veal, Plaintiff, v. Paul Penzone, et al., Defendants.
HONORABLE MICHAEL T. LIBURDI, JUDGE
REPORT AND RECOMMENDATION
Camille D. Bibles United States Magistrate Judge
Plaintiff proceeds pro se in this civil rights matter, filed February 14, 2022, and has paid the filing fee. In an order entered March 25, 2022, the Court warned Plaintiff:
If Plaintiff does not either obtain a waiver of service of the summons or complete service of the Summons and Complaint on a Defendant within 90 days of the filing of the Complaint or within 60 days of the filing of this Order, whichever is later, the action may be dismissed as to each Defendant not served. Fed.R.Civ.P. 4(m); LRCiv 16.2(b)(2)(B)(ii).(ECF No. 6) (emphasis added). Accordingly, service in this matter was required by May 24, 2022. In an order to show cause issued May 26, 2022, the Court noted the CM/ECF docket in this matter indicated Plaintiff had failed to effective service of process on any Defendant within the time required by the Court's order at ECF No. 6, and allowed him until June 10, 2022, to show cause why all of the Defendants and all of Plaintiff's claims should not be dismissed for Plaintiff's failure to comply with the Court's order of March 25, 2022, and Rule 4 of the Federal Rules of Civil Procedure.
In response to the order to show cause, Plaintiff supplies “certificates of service” indicating he mailed, via certified mail, copies of the Court's order at ECF No. 6 and his Inmate Grievance Form to each Defendant on or about April 28, 2022. (ECF No. 8).
Rule 4(c)(1) of the Federal Rules of Civil Procedure provides that, to effect proper service on a defendant, “[a] summons must be served with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service.” (emphasis added). Rule 4(m) of the Federal Rules of Civil Procedure provides that, if service of the summons and complaint is not made upon a defendant within 90 days of filing the complaint, federal district courts must sua sponte dismiss an action without prejudice, after notice to the plaintiff. If, however, a plaintiff shows good cause for the failure to serve the complaint within that time frame, the Court must extend the time for accomplishing service. Fed.R.Civ.P. 4(m); In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001). The “good cause” exception to Rule 4(m) applies “only in limited circumstances” and is not satisfied by “inadvertent error or ignorance of the governing rules.” Hamilton v. Endell, 981 F.2d 1062, 1065 (9th Cir. 1992). See also Townsel v. County of Contra Costa, 820 F.2d 319, 320 (9th Cir. 1987) (holding that a plaintiff's ignorance of Rule 4 is not good cause). Similarly, the fact that a plaintiff is pro se does not in itself constitute “good cause” for his failure to effect service of a summons and complaint within the Rule 4(m) deadline. See Hearst v. West, 31 Fed.Appx. 366, 369 (9th Cir. 2002); Saddozai v. Nelson, 2022 WL 501580, at *1 (9th Cir. Feb. 18, 2022) (“The district did not abuse its discretion in dismissing Saddozai's action because Saddozai did not comply with the court's order, or request an extension of time to effect service.”). Pro se litigants must follow the same rules of procedure that govern other litigants. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), overruled on other grounds by Lacey v. Maricopa Cnty., 693 F.3d 896 (9th Cir. 2012).
In the order at ECF No. 6, Plaintiff was advised that to properly effect service on a defendant named in a federal law suit, the plaintiff must “complete service of the Summons and Complaint on a Defendant within 90 days of the filing of the Complaint or within 60 days of the filing of [the order at ECF No. 6], whichever is later,” and that if he failed to do so “the action may be dismissed as to each Defendant not served. Fed.R.Civ.P. 4(m).” (emphasis added). The CM/ECF docket in this matter indicates that Plaintiff never obtained summonses for the Defendants, and his filing at ECF No. 8 avers that, although Plaintiff mailed copies of the order at ECF No. 6 and his grievance form to each Defendant, Plaintiff did not serve either a summons or the Complaint on any Defendant within the time specified by the Court's order at ECF No. 6.
Plaintiff has failed to properly execute service on any Defendant pursuant to Rule 4 of the Federal Rules of Civil Procedure and the order at ECF No. 6.
Accordingly, IT IS RECOMMENDED that all Defendants and Plaintiff's Complaint be dismissed without prejudice, based on the failure to serve Defendants pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
Pursuant to Rule 72(b), Federal Rules of Civil Procedure, parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Pursuant to Rule 7.2, Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length.
Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will constitute a waiver of a party's right to appellate review of the findings of fact and conclusions of law in an order or judgment entered pursuant to the recommendation of the Magistrate Judge.