“[W]e do not believe it is the proper function of the district court to assume the role of advocate for the pro se litigant.”
How later courts described this case
- “[W]e do not believe it is the proper function of the district court to assume the role of advocate for the pro se litigant.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ROBIN McDANIELS, )
)
Plaintiff, )
)
v. ) Case No. CIV-19-1134-D
)
WILLIAM P. BARR, Attorney General, )
Department of Justice (Federal Bureau of )
Prisons), Agency, )
)
Defendant. )
ORDER
Plaintiff, appearing pro se, initiated this action on December 4, 2019 [Doc. No. 1],
claiming race and gender discrimination and hostile work environment in violation of Title
VII and the Americans with Disabilities Act. The issue before the Court is Plaintiff’s
failure to effect service under FED. R. CIV. P. 4. Plaintiff’s pleadings are liberally
construed.
BACKGROUND
The record reflects that on December 4, 2019, Plaintiff filed her “Pro Se Litigant’s
Request for Issuance of Summons” [Doc. No. 3], requesting that summons be issued for
Defendant William P. Barr, Attorney General, and showing the address for service as the
Federal Bureau of Prisons Federal Transfer Center in Oklahoma City, Oklahoma. The
summons was issued and returned to Plaintiff for service on January 22, 2020 [Doc. No.
10]. On February 6, 2020, Plaintiff attempted to serve Defendant via certified mail [Doc.
No. 11]. The return receipt indicates that an agent at the Federal Transfer Center in
Oklahoma City, Oklahoma, signed for the mail. Id. A copy of the return receipt was filed
with the Court on March 18, 2020. Id. However, Plaintiff failed to attach a copy of an
executed summons for Defendant.1 Further, the filed return receipt does not indicate what
was mailed to Defendant.
On June 10, 2020, the Court entered an order [Doc. No. 12] directing Plaintiff to
show cause by June 24, 2020, why the action should not be dismissed for failure to effect
service of process within ninety days after filing the complaint. The Court advised Plaintiff
that her attempt to serve Defendant by serving an agent at the Federal Transfer Center in
Oklahoma City was not effective service under FED. R. CIV. P. 4. Id. at 2. Additionally,
the Court advised Plaintiff that she must deliver a copy of the summons and the complaint
to the United States Attorney for the district in which the suit is brought, and send a copy
of the summons and the complaint by registered or certified mail to Defendant at his office
in Washington, D.C., in accordance with FED. R. CIV. P. 4(i). Id. at 1–2.
On June 19, 2020, Plaintiff asked the Court for an extension of time to serve
Defendant. [Doc. No. 13]. Plaintiff did not cite any reason for the delay. On June 25,
2020, the Court found that a permissive extension of time was warranted, and extended the
time for service until July 9, 2020. [Doc. No. 14].
In response, Plaintiff filed a return receipt indicating that someone at Defendant’s
office in Washington, D.C., had signed for the mail on June 22, 2020. [Doc. No. 15].
Again, Plaintiff failed to attach a copy of an executed summons for Defendant, pursuant to
1 “Unless service is waived, proof of service must be made to the court.” FED. R. CIV. P.
4(l)(1). “[P]roof must be by the server’s affidavit.” Id.
FED. R. CIV. P. 4(l)(1). Further, the filed return receipt does not indicate what was mailed
to Defendant on June 22, 2020.
DISCUSSION
More than 230 days have passed since this action was filed, and Plaintiff has failed
to establish that she has effected service in this case. Plaintiff has not shown that she has
served the United States Attorney for this district, nor has she filed proof of service that
Defendant was served properly, effectively, and timely at his office in Washington, D.C.
In addition, Plaintiff has not advanced any argument that there is good cause for her failure;
thus, another extension of time is not required. Espinoza v. United States, 52 F.3d 838,
841 (10th Cir. 1995). Nevertheless, the Court must still consider whether a permissive
extension of time to serve Defendant is warranted. Id. at 841–42. In determining whether
another permissive extension is warranted, the Court has considered the factors identified
in Espinoza. Id.
Plaintiff indicates that she received her right-to-sue letter from the Equal
Employment Opportunity Commission on September 4, 2019 [Doc. No. 1 at 14]. Title VII
requires a plaintiff to bring an action within ninety days of receiving this letter. See 42
U.S.C. § 2000e-5(f)(1). Because state tolling and saving provisions are not applicable
where Congress has provided a statute of limitation for a federal claim, the statute of
limitations would bar Plaintiff’s action were it dismissed and refiled. See Brown v.
Hartshorne Pub. Sch. Dist. 1, 926 F.2d 959, 961 (10th Cir. 1991); Espinoza, 52 F.3d at
842. The Court considered this factor in granting the first permissive extension of time.
[Doc. No. 14 at 2]. However, the Court finds that factor less persuasive now, particularly
given the fact that Plaintiff still has not provided the Court with any reason, factual or legal,
to exercise the Court’s discretion in favor of extending the time for service. The Court
advised Plaintiff in its June 10, 2020 Show Cause Order [Doc. No. 12] how to properly
effect service, and forty-two days later, Plaintiff still has not effected proper service.
The Court has also considered the complexity of service and found that it is no
longer a factor, given the Court’s two previous orders [Doc. Nos. 12, 14] outlining the
deficiencies in Plaintiff’s service attempts. Although pro se, Plaintiff is required to follow
the same rules of procedure governing other litigants. See Green v. Dorrell, 969 F.2d 915,
917 (10th Cir. 1992). It is Plaintiff’s responsibility to properly effect service, and the Court
is limited in the direction it can provide. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991) (“[W]e do not believe it is the proper function of the district court to assume the role
of advocate for the pro se litigant.”). Accordingly, the Court finds that Plaintiff should not
be given another permissive extension of time in order to serve Defendant, and that
dismissal of Plaintiff’s complaint without prejudice to refiling is warranted.
CONCLUSION
Based on the foregoing, this action is dismissed without prejudice to refiling for
failure to effect service of process within ninety days after filing the complaint, pursuant
to FED. R. CIV. P. 4(i) and (m).
IT IS SO ORDERED this 23" day of July 2020.
\ i 0 Ot
TIMOTHY D. DeGIUSTI
Chief United States District Judge