Brown v. Pottawatomie County Sheriff

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

LEONARDO RENÉ BROWN, )

)

Plaintiff, )

)

v. ) Case No. CIV-17-428-G

)

MICHAEL D. BOOTHE et al., )

)

Defendants. )

OPINION AND ORDER

Plaintiff Leonardo René Brown, appearing pro se and proceeding in forma pauperis,

filed a Second Amended Complaint on November 17, 2017, asserting claims pursuant to

42 U.S.C. § 1983 based on alleged violations of his federal constitutional rights. See

Second Am. Compl. (Doc. No. 27). For the reasons discussed below, the Court dismisses

the sole remaining claim, an individual-capacity Eighth Amendment claim against

Defendant Whitney Thompson, without prejudice for failure of service.1

I. Background

On September 14, 2018, the Court ordered service of the Second Amended

Complaint upon Defendant Thompson. See Order of Sept. 14, 2018 (Doc. No. 34). This

Order expressly warned Plaintiff that, even though the United States Marshals Service

(“USMS”) had been directed “to attempt to accomplish service” on his behalf, “service

[was] ultimately Plaintiff’s responsibility.” Id. at 2 (citing Fed. R. Civ. P. 4(c)). Plaintiff

1 The Court previously dismissed all claims against the other Defendants and dismissed the

official-capacity claim against Defendant Thompson. See Order of Sept. 12, 2018 (Doc.

No. 33) (Heaton, J.).

was given 21 days from the date of that Order (i.e., until October 5, 2018) to properly

request the issuance of a summons, and 90 days from the date of the Order (i.e., until

December 13, 2018) to ensure that a proof of service or waiver of service for Defendant

Thompson had been filed with the Court. See id. at 1-2 (citing Fed. R. Civ. P. 4(c), (d), (l),

(m)). Plaintiff was warned that “[t]he failure to file timely proof of service as to Defendant

Thompson may result in the dismissal of the claims against her.” Id. at 2 (citing Fed. R.

Civ. P. 4(m)). This Order was mailed to Plaintiff at his address of record, along with the

necessary forms for requesting the issuance of summonses. Plaintiff requested the issuance

of a summons on October 9, 2018. See Pl.’s Req. Issuance of Summons (Doc. No. 36).

On October 25, 2018, the USMS filed an unexecuted process return, containing the

notation that Defendant Thompson does not work at the address Plaintiff provided. See

First Process Receipt & Return (Doc. No. 39).

On December 3, 2018, Plaintiff filed a document titled “Statement for Service of

Process” in which Plaintiff provided two new addresses for Defendant Thompson. See

Pl.’s Notice (Doc. No. 40). Based upon this submission, the Court granted Plaintiff an

extension of time in which to serve Defendant Thompson, ordered the Court Clerk to issue

a summons directed to Defendant Thompson at the first new address provided by Plaintiff,

and directed the USMS to attempt service at that address. See Order of Apr. 12, 2019 (Doc.

No. 42). The USMS filed an unexecuted process return on May 2, 2019, which again

indicated that Defendant Thompson did not work at the address provided. See Second

Process Receipt & Return (Doc. No. 44).

The Court then granted Plaintiff a second extension of time, ordered the Court Clerk

to issue a summons directed to Defendant Thompson at the second new address provided

by Plaintiff, and directed the USMS to attempt service at this second new address. See

Order of June 6, 2019 (Doc. No. 46). In its Order, the Court reminded Plaintiff that service

is ultimately Plaintiff’s responsibility. See id. at 2. After attempting service on Defendant

Thompson a third time, the USMS filed a third unexecuted process return on July 31, 2019,

which stated that Defendant Thompson does not work at the location provided. See Third

Process Receipt & Return (Doc. No. 50).

Because Plaintiff had failed to file a proof of service or waiver of service for

Defendant Thompson within the time provided, the Court on August 27, 2019, ordered that

Plaintiff had until September 17, 2019, to show good cause in writing as to why his claim

against Defendant Thompson should not be dismissed. See Order of Aug. 27, 2019 (Doc.

No. 51). This Order expressly warned Plaintiff that failure to show good cause may result

in the dismissal of Plaintiff’s claim against Defendant Thompson. See id. at 3 (citing Fed.

R. Civ. P. 4(m)). The Order was mailed to Plaintiff at his address of record and there is no

indication from the docket that it was not received by Plaintiff. See LCvR 5.4(a). As of

this date, Plaintiff has not responded to the Court’s Order.

II. Discussion

“If a defendant is not served within 90 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.”

Fed. R. Civ. P. 4(m). Although Plaintiff is a pro se litigant, he is required to comply with

the same rules of procedure governing other litigants, including Rule 4. See DiCesare v.

Stuart, 12 F.3d 973, 980 (10th Cir. 1993). Thus, Plaintiff’s failure to complete proper

service upon Defendant Thompson within the prescribed time limit is grounds for dismissal

of the claim against her, absent justification for this failure. See Fed. R. Civ. P. 4(m).

District courts in this circuit “employ[] a two-step analysis for dismissal pursuant to

Rule 4(m).” Womble v. Salt Lake City Corp., 84 F. App’x 18, 20 (10th Cir. 2003). First,

if the plaintiff shows good cause for his or her failure to properly serve a defendant, the

court must extend the deadline for an “‘appropriate period.’” Espinoza v. United States,

52 F.3d 838, 841 (10th Cir. 1995) (quoting Fed. R. Civ. P. 4(m)). Plaintiff has made no

attempt to show “good cause” under Rule 4(m) for the failure to complete service upon

Defendant Thompson, and no “good cause” is otherwise reflected in the record before the

Court.2 Fed. R. Civ. P. 4(m).

Second, “[i]f the plaintiff fails to show good cause, the district court must still

consider whether a permissive extension of time may be warranted.” Espinoza, 52 F.3d at

841. In making this determination, the court should consider several factors, including

whether “the applicable statute of limitations would bar the refiled action”; whether the

plaintiff tried to follow “the complex requirements of multiple service” when serving the

United States, its agencies, or employees; and whether there is reason to protect a pro se

2 That the USMS has been unable to effect service on Defendant Thompson does not

amount to “good cause” for purposes of Fed. R. Civ. P. 4(m). While Plaintiff is entitled to

service assistance from the USMS, it is incumbent upon him to supply the information that

agency requires to locate and serve each Defendant. See Fields v. Okla. State Penitentiary,

511 F.3d 1109, 1113 (10th Cir. 2007) (“It is the plaintiff’s responsibility to provide the

United States Marshal with the address of the person to be served[.]” (citation omitted)).

plaintiff “from consequences of confusion or delay attending the resolution of an in forma

pauperis petition.” Id. at 842 & n.8 (internal quotation marks omitted). Defendant

Thompson is not a United States officer or employee, and the Court granted Plaintiff’s in

forma pauperis application well before it authorized him to have process served on

Defendant Thompson. See Fed. R. Civ. P. 4(i)(3); Order of Apr. 21, 2017 (Doc. No. 5) at

1-2.

Thus, the Espinoza factors weigh in favor of dismissal under Rule 4(m),3 and the

Court discerns no other policy considerations that warrant another permissive extension in

this case. Further, Plaintiff has been warned repeatedly that failure to accomplish service

would result in a dismissal without prejudice and has been afforded an opportunity to

justify his failure to do so. See Smith v. Glanz, 662 F. App’x 595, 596, 597-98 (10th Cir.

2016) (affirming dismissal under Rule 4(m) where “the district court first notified [the

plaintiff] of its intention to dismiss the claims against [the defendants] for failure of service

and gave [the plaintiff] time to show good cause for the failure of service”).

3 Though the two-year statute of limitations has likely expired for Plaintiff’s § 1983 claims

against Defendant Thompson, the expiration would not necessarily bar Plaintiff from

refiling the action against Defendant Thompson in her individual capacity, if the claim is

dismissed under Rule 4(m). See Second Am. Compl. at 5; Espinoza, 52 F.3d at 842.

Plaintiff likely could rely upon Oklahoma’s “savings statute,” Okla. Stat. tit. 12, § 100, to

file a new action against Defendant Thompson within one year of dismissal under Rule

4(m) because such a dismissal represents a “failure ‘otherwise than on the merits’ within

the meaning of § 100.” Harper v. Bearden, No. CIV-14-563-HE, 2015 WL 9590268, at

*4 (W.D. Okla. Nov. 17, 2015) (R. & R.) (citing Ross v. Kelsey Hayes, Inc., 825 P.2d 1273,

1277 (Okla. 1991)), adopted sub nom. Harper v. Okla. Dep’t of Corr. Dir., 2015 WL

9581862 (W.D. Okla. Dec. 30, 2015); see Eastom v. City of Tulsa, 783 F.3d 1181, 1184

(10th Cir. 2015) (explaining that the “Oklahoma saving statute applies to § 1983 claims”);

Mann v. Warden, Fed. Transfer Ctr., No. CIV-15-1276-D, 2017 WL 544594, at *2 (W.D.

Okla. Feb. 10, 2017).

CONCLUSION

Accordingly, the Court DISMISSES the individual-capacity claim against

Defendant Thompson without prejudice for failure of service under Rule 4(m) of the

Federal Rules of Civil Procedure.

IT IS SO ORDERED this 3rd day of October, 2019.

CHARLES B. GOODWIN.

United States District Judge