# Parks v. Taylor

> District Court, W.D. Oklahoma · January 27, 2023

URL: https://www.frixlaw.com/law-library/cases/10390018

## Case

- **Court:** District Court, W.D. Oklahoma
- **Decided:** January 27, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

ALLEN ALEXANDER PARKS, )
)
Plaintiff, )
)
v. ) Case No. CIV-19-1137-D
)
SHERIFF P.D. TAYLOR, et al., )
)
Defendants. )

O R D E R
This matter comes before the Court for review of the Report and Recommendation
[Doc. No. 113] issued by United States Magistrate Judge Amanda Maxfield Green on
November 22, 2022. Judge Green recommends a dismissal under Fed. R. Civ. P. 4(m) of
Plaintiff’s action against multiple defendants who have not been served with process in this
case, which was filed over three years ago and is proceeding under the Amended Complaint
[Doc. No. 46] filed November 6, 2020.
Plaintiff, a state prisoner who appears pro se, has filed a timely objection within the
extended deadline set by the Court. See 12/28/22 Order [Doc. No. 117]. Plaintiff states
three reasons why timely service should be excused or a dismissal for lack of service should
not be ordered: 1) a November 2020 motion (with the Amended Complaint) in which he
requested a service deadline, is missing from the case file; 2) service of process should be
“deemed” completed as to defendants who received actual notice of the lawsuit; and 3) case
filings by the district attorney’s office on behalf of some county defendants, such as former
sheriff P.D. Taylor, show that two other county defendants (former district attorney David
Prater and the Board of County Commissioners) received notice of this lawsuit. See Pl.’s
Obj. [Doc. No. 119] at 1-2. The Court must make a de novo determination of the portions

of the Report to which a specific objection is made, and may accept, reject, or modify the
recommended decision, in whole or in part. See 28 U.S.C. § 636(b)(1); Fed. R. Civ.
P. 72(b)(3).
Upon de novo consideration, the Court finds that Plaintiff has not served Defendants
Jason Everhart, Sean McKeehan, Ronnie Neal, Gene Bradley, the Board of County
Commissioners of Oklahoma County, David Prater, Kelly Collins, Major Herron, Deputy

Boren, and Sergeant Whittington. Plaintiff’s argument that defendants with actual notice
of a lawsuit may be “deemed” served is incorrect; he relies on inapposite legal authority
regarding substantial compliance with a statutory provision for service. See Obj. at 2
(citing Pendleton v. Bd. Cnty. Comm’rs, Case No. CIV-18-707-G, 2019 WL 4752269, *3
(W.D. Okla. Sept. 30, 2019) (unpublished) (denying Rule 12(b)(5) motion to dismiss for

insufficient service). In any event, Plaintiff has not shown that any unserved defendant
received actual notice of being sued in this case. The Court also finds that Plaintiff has not
identified a substantial reason why the recommended dismissal should not be ordered.
Notably, Plaintiff does not make any specific objection to Judge Green’s findings
and conclusions under Rule 4(m), and thus, Plaintiff has waived further review of the issues

addressed in the R&R. See United States v. 2121 E. 30th Street, 73 F.3d 1057, 1060 (10th
Cir. 1996) (“an objection stating only ‘I object’ preserves no issue for review”). Further,
the Court finds that Judge Green states the correct legal standard and fairly applies it to the
circumstances presented. Plaintiff has not shown good cause for the lack of service nor
articulated why more time for service should be granted.' Thus, for the reasons stated by
Judge Green, the Court finds that Plaintiff's action against all unserved defendants should
be dismissed without prejudice under Rule 4(m) and that the case should proceed against
only the served defendants.
IT IS THEREFORE ORDERED that the Report and Recommendation [Doc.
No. 113] is ADOPTED. Plaintiff's action against Defendants Jason Everhart, Sean
McKeehan, Ronnie Neal, Gene Bradley, the Board of County Commissioners of Oklahoma
County, David Prater, Kelly Collins, Major Herron, Deputy Boren, and Sergeant
Whittington is DISMISSED without prejudice to refiling.
IT IS SO ORDERED this 27" day of January, 2023.

\ : □□□ .
QO. yf
TIMOTHY D. DeGIUSTI
Chief United States District Judge

' Although the court of appeals has not conclusively defined “good cause” for purposes
of Rule 4(m), the court “has interpreted the phrase narrowly, rejecting inadvertence or neglect as
‘good cause’ for untimely service.” Broitman v. Kirkland Un re Kirkland), 86 F.3d 172, 174 (10th
Cir. 1996); see also Murphy v. City of Tulsa, 556 F. App’x 664, 668 (10th Cir. 2014). Absent good
cause, “the district court may in its discretion either dismiss the case without prejudice or extend
the time for service,” but it is not an abuse of discretion for the district court to decline an extension
where none is requested. Murphy, 556 F. App’x at 668-69 (quoting Espinoza v. United States,
§2 F.3d 838, 841 (10th Cir. 1995)).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10390018. Public record. Not legal advice.