1 WO JL 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Bryan Colters, No. CV-21-00998-PHX-MTL 10 Plaintiff, 11 v. ORDER 12 Maricopa County Jail, et al., 13 Defendants.
15 Pro se Plaintiff Bryan Colters has filed a Motion to Reopen Case (Doc. 36). The 16 Court construes the Motion as a Motion for Relief from a Judgment or Order pursuant to 17 Federal Rule of Civil Procedure 60(b). The Court will deny the Motion. 18 I. Procedural History 19 Plaintiff initially brought this civil rights case pursuant to 42 U.S.C. § 1983 against 20 former Maricopa County Sheriff Penzone, the Maricopa County Jail, and “Officer 21 Barking.” (Doc. 1.) Plaintiff alleged that when he arrived at a Maricopa County Jail after 22 being transferred from Indiana, Defendant Barking used excessive force against him. (Id.) 23 In a June 17, 2021 Order, the Court determined Plaintiff had stated an excessive force claim 24 against Defendant Barking. (Doc. 5.) The Court ordered Plaintiff to complete and return 25 a service packet for Defendant Barking within 21 days of the Order. (Id.) 26 Plaintiff returned the service packet, and the United States Marshals Service 27 (“USMS”) attempted to serve Defendant Barking at the Maricopa County Sheriff’s Office 28 (“MCSO”), but MCSO officials declined to waive service because they were unable to 1 identify Defendant Barking. (Doc. 7.) In a September 15, 2021 Order, the Court ordered 2 Plaintiff to provide a current address for Defendant Barking, return to the Court a 3 completed subpoena and USM-285 (Process Receipt and Return) form directed to MCSO 4 to assist with identifying Defendant Barking, or otherwise show cause why Defendant 5 Barking should not be dismissed for failure to effect service. (Doc. 8.) 6 On October 25, 2021, Plaintiff filed a Motion to Grant Pretrial Discovery, stating 7 that on June 7, 2021, he had been “assaulted by a correctional officer who the plaintiff 8 thought was barking at him.” (Doc. 9 at 1.) Plaintiff asserted that Defendants were refusing 9 to give him the incident report and gave no reason for the denial. (Id. at 2.) He claimed 10 Defendants were attempting to evade service and asked the Court to order the Maricopa 11 County Jail to turn over the Incident Report so that Plaintiff could discover the name of the 12 officer who allegedly assaulted him. (Id.) Plaintiff included with his Motion a proposed 13 Subpoena requesting “the incident reports from [a] physical assault by of [sic] Burkings, 14 and all documents attached to [Plaintiff’s] [i]ntake.” (Id. at 3.) In a December 2, 2021 15 Order, the Court directed the Clerk of Court to complete a new USM-285 for Plaintiff 16 addressed to Penzone and to forward the proposed subpoena and corrected USM-285 to 17 the USMS. (Doc. 10.) 18 On December 29, 2021, Penzone filed a Notice of Compliance stating there was no 19 employee at MCSO with the last name “Burking” or “Barking,” and that Penzone had 20 searched all records at each Maricopa County jail “under his charge for any incident 21 involving Plaintiff for the date referenced and no records could be found.” (Doc. 12.) 22 Penzone stated that as far as he could ascertain, Plaintiff was not incarcerated in an MCSO 23 facility on October 28, 2021. (Id.) In a July 15, 2022 Order, the Court ordered Plaintiff to 24 show cause why Defendant Barking should not be dismissed for failure to serve. (Doc. 25 13.) On July 27, 2022, Plaintiff filed a Response to the Order to Show Cause, requesting 26 leave to submit a second subpoena for the incident report concerning the alleged assault on 27 April 13, 2021 and Plaintiff’s booking information from April 13 to 15, 2021. (Doc. 16.) 28 In an August 16, 2022 Order, the Court granted Plaintiff’s request for leave to submit a 1 second subpoena. (Doc. 17.) The new Subpoena requested “all information from Booking 2 Number T694549 from the date of 4/13/2021 / 4/15/22.” (Doc. 18.) After Defendant 3 Barking moved to quash and modify the subpoena, the Court narrowed the subpoena for 4 responsive documents between April 13, 2021, and April 15, 2021. (Docs. 19, 20.) 5 On December 22, 2022, Penzone filed a Notice stating that MCSO pulled records 6 for Booking Number T694549 and that it “seem[ed] the incident Plaintiff [was] referring 7 to actually occurred on April 16, 2021,” and Penzone had disclosed documents related to 8 the April 16, 2021 event, as well as records from April 13 to 15, 2021. (Doc. 21.) Nearly 9 four months later, on April 10, 2023, Plaintiff filed a Motion to Amend Complaint, stating 10 that he had “the correct information.” (Doc. 22.) In a June 5, 2023 Order, the Court noted 11 Plaintiff had not attached an amended complaint to his Motion and gave him 21 days to 12 file a renewed motion to amend and a proposed amended complaint. (Doc. 26.) 13 On July 5, 2023, Plaintiff filed a Motion to Amend Complaint, stating he had 14 received the officer’s name and information, and “his name is Officer Perkins #B4555.” 15 (Doc. 28.) Plaintiff requested leave to amend the Complaint and attached a proposed 16 Amended Complaint naming “Officer Perkin” as the sole Defendant. (Id.; Doc. 29.) In an 17 August 29, 2023 Order, the Court denied the Motion to Amend but sua sponte substituted 18 Officer Perkins in place of Officer Barking. (Doc. 30.) The Court gave Plaintiff 21 days 19 to complete and return a service packet for Officer Perkins. (Id.) 20 Plaintiff failed to timely return the service packet, and in a September 28, 2023 21 Order, the Court ordered Plaintiff to either return a completed service packet for Officer 22 Perkins or show cause why the case should not be dismissed for failure to comply with the 23 Court’s Order. (Doc. 31.) On October 6, 2023, the Court received a service packet from 24 Plaintiff directed to Officer Barking, rather than Officer Perkins. (Doc. 32.) The same 25 day, the Clerk of Court returned the service packet to Plaintiff for correction. (Doc. 33.) 26 Plaintiff never returned the service packet or responded to the Order to Show Cause. 27 On November 17, 2023, the Magistrate Judge issued a Report and Recommendation 28 that Plaintiff’s claims be dismissed without prejudice for failure to effect timely service 1 and failure to comply with the Court’s Orders. (Doc. 34.) In a December 24, 2023 Order, 2 the Court accepted the Report and Recommendation and dismissed this case without 3 prejudice. (Doc. 35.) 4 II. Plaintiff’s Motion 5 In his Motion, Plaintiff asserts that he completed the summons and USM-285 form 6 and returned it to the Court, but when USMS “went to the individual Defendant[’]s job[,] 7 the facility denied process.” (Doc. 36 at 1.) Plaintiff claims “[t]hese individuals have been 8 lying to the [C]ourt from the start,” and that Defendants’ counsel “said the Defendant [did 9 not] work there and then admitted that he work[ed] the[re] and that the incident happen[ed]. 10 (Id.) Plaintiff contends Defendants are evading service. (Id. at 2.) Plaintiff includes with 11 his Motion a partially completed Process Receipt and Return, which Plaintiff appears to 12 have dated December 21, 2023; a Waiver of Service of Summons addressed to “Officer 13 Barking,” dated December 20, 2023; and a Summons that is not signed by the Clerk of 14 Court. (Id. at 4-7.) These documents do not exist elsewhere in the record, and it is unclear 15 how they support Plaintiff’s claim that Defendant Barking (or Perkins) evaded service. 16 III. Discussion 17 Rule 60(b) of the Federal Rules of Civil Procedure
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1 WO JL 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Bryan Colters, No. CV-21-00998-PHX-MTL 10 Plaintiff, 11 v. ORDER 12 Maricopa County Jail, et al., 13 Defendants.
15 Pro se Plaintiff Bryan Colters has filed a Motion to Reopen Case (Doc. 36). The 16 Court construes the Motion as a Motion for Relief from a Judgment or Order pursuant to 17 Federal Rule of Civil Procedure 60(b). The Court will deny the Motion. 18 I. Procedural History 19 Plaintiff initially brought this civil rights case pursuant to 42 U.S.C. § 1983 against 20 former Maricopa County Sheriff Penzone, the Maricopa County Jail, and “Officer 21 Barking.” (Doc. 1.) Plaintiff alleged that when he arrived at a Maricopa County Jail after 22 being transferred from Indiana, Defendant Barking used excessive force against him. (Id.) 23 In a June 17, 2021 Order, the Court determined Plaintiff had stated an excessive force claim 24 against Defendant Barking. (Doc. 5.) The Court ordered Plaintiff to complete and return 25 a service packet for Defendant Barking within 21 days of the Order. (Id.) 26 Plaintiff returned the service packet, and the United States Marshals Service 27 (“USMS”) attempted to serve Defendant Barking at the Maricopa County Sheriff’s Office 28 (“MCSO”), but MCSO officials declined to waive service because they were unable to 1 identify Defendant Barking. (Doc. 7.) In a September 15, 2021 Order, the Court ordered 2 Plaintiff to provide a current address for Defendant Barking, return to the Court a 3 completed subpoena and USM-285 (Process Receipt and Return) form directed to MCSO 4 to assist with identifying Defendant Barking, or otherwise show cause why Defendant 5 Barking should not be dismissed for failure to effect service. (Doc. 8.) 6 On October 25, 2021, Plaintiff filed a Motion to Grant Pretrial Discovery, stating 7 that on June 7, 2021, he had been “assaulted by a correctional officer who the plaintiff 8 thought was barking at him.” (Doc. 9 at 1.) Plaintiff asserted that Defendants were refusing 9 to give him the incident report and gave no reason for the denial. (Id. at 2.) He claimed 10 Defendants were attempting to evade service and asked the Court to order the Maricopa 11 County Jail to turn over the Incident Report so that Plaintiff could discover the name of the 12 officer who allegedly assaulted him. (Id.) Plaintiff included with his Motion a proposed 13 Subpoena requesting “the incident reports from [a] physical assault by of [sic] Burkings, 14 and all documents attached to [Plaintiff’s] [i]ntake.” (Id. at 3.) In a December 2, 2021 15 Order, the Court directed the Clerk of Court to complete a new USM-285 for Plaintiff 16 addressed to Penzone and to forward the proposed subpoena and corrected USM-285 to 17 the USMS. (Doc. 10.) 18 On December 29, 2021, Penzone filed a Notice of Compliance stating there was no 19 employee at MCSO with the last name “Burking” or “Barking,” and that Penzone had 20 searched all records at each Maricopa County jail “under his charge for any incident 21 involving Plaintiff for the date referenced and no records could be found.” (Doc. 12.) 22 Penzone stated that as far as he could ascertain, Plaintiff was not incarcerated in an MCSO 23 facility on October 28, 2021. (Id.) In a July 15, 2022 Order, the Court ordered Plaintiff to 24 show cause why Defendant Barking should not be dismissed for failure to serve. (Doc. 25 13.) On July 27, 2022, Plaintiff filed a Response to the Order to Show Cause, requesting 26 leave to submit a second subpoena for the incident report concerning the alleged assault on 27 April 13, 2021 and Plaintiff’s booking information from April 13 to 15, 2021. (Doc. 16.) 28 In an August 16, 2022 Order, the Court granted Plaintiff’s request for leave to submit a 1 second subpoena. (Doc. 17.) The new Subpoena requested “all information from Booking 2 Number T694549 from the date of 4/13/2021 / 4/15/22.” (Doc. 18.) After Defendant 3 Barking moved to quash and modify the subpoena, the Court narrowed the subpoena for 4 responsive documents between April 13, 2021, and April 15, 2021. (Docs. 19, 20.) 5 On December 22, 2022, Penzone filed a Notice stating that MCSO pulled records 6 for Booking Number T694549 and that it “seem[ed] the incident Plaintiff [was] referring 7 to actually occurred on April 16, 2021,” and Penzone had disclosed documents related to 8 the April 16, 2021 event, as well as records from April 13 to 15, 2021. (Doc. 21.) Nearly 9 four months later, on April 10, 2023, Plaintiff filed a Motion to Amend Complaint, stating 10 that he had “the correct information.” (Doc. 22.) In a June 5, 2023 Order, the Court noted 11 Plaintiff had not attached an amended complaint to his Motion and gave him 21 days to 12 file a renewed motion to amend and a proposed amended complaint. (Doc. 26.) 13 On July 5, 2023, Plaintiff filed a Motion to Amend Complaint, stating he had 14 received the officer’s name and information, and “his name is Officer Perkins #B4555.” 15 (Doc. 28.) Plaintiff requested leave to amend the Complaint and attached a proposed 16 Amended Complaint naming “Officer Perkin” as the sole Defendant. (Id.; Doc. 29.) In an 17 August 29, 2023 Order, the Court denied the Motion to Amend but sua sponte substituted 18 Officer Perkins in place of Officer Barking. (Doc. 30.) The Court gave Plaintiff 21 days 19 to complete and return a service packet for Officer Perkins. (Id.) 20 Plaintiff failed to timely return the service packet, and in a September 28, 2023 21 Order, the Court ordered Plaintiff to either return a completed service packet for Officer 22 Perkins or show cause why the case should not be dismissed for failure to comply with the 23 Court’s Order. (Doc. 31.) On October 6, 2023, the Court received a service packet from 24 Plaintiff directed to Officer Barking, rather than Officer Perkins. (Doc. 32.) The same 25 day, the Clerk of Court returned the service packet to Plaintiff for correction. (Doc. 33.) 26 Plaintiff never returned the service packet or responded to the Order to Show Cause. 27 On November 17, 2023, the Magistrate Judge issued a Report and Recommendation 28 that Plaintiff’s claims be dismissed without prejudice for failure to effect timely service 1 and failure to comply with the Court’s Orders. (Doc. 34.) In a December 24, 2023 Order, 2 the Court accepted the Report and Recommendation and dismissed this case without 3 prejudice. (Doc. 35.) 4 II. Plaintiff’s Motion 5 In his Motion, Plaintiff asserts that he completed the summons and USM-285 form 6 and returned it to the Court, but when USMS “went to the individual Defendant[’]s job[,] 7 the facility denied process.” (Doc. 36 at 1.) Plaintiff claims “[t]hese individuals have been 8 lying to the [C]ourt from the start,” and that Defendants’ counsel “said the Defendant [did 9 not] work there and then admitted that he work[ed] the[re] and that the incident happen[ed]. 10 (Id.) Plaintiff contends Defendants are evading service. (Id. at 2.) Plaintiff includes with 11 his Motion a partially completed Process Receipt and Return, which Plaintiff appears to 12 have dated December 21, 2023; a Waiver of Service of Summons addressed to “Officer 13 Barking,” dated December 20, 2023; and a Summons that is not signed by the Clerk of 14 Court. (Id. at 4-7.) These documents do not exist elsewhere in the record, and it is unclear 15 how they support Plaintiff’s claim that Defendant Barking (or Perkins) evaded service. 16 III. Discussion 17 Rule 60(b) of the Federal Rules of Civil Procedure provides that the Court may 18 relieve a party from a final judgment for among other reasons, mistake, inadvertence, 19 surprise, or excusable neglect; or for “any other reason that justifies relief.” Fed. R. Civ. 20 P. 60(b)(1), (6). Although Plaintiff might have misunderstood or had difficulty complying 21 with the Court’s Orders, “a party who simply misunderstands or fails to predict the legal 22 consequences of his deliberate acts cannot later, once the lesson is learned, turn back the 23 clock to undo those mistakes.” Latshaw v. Trainer Wortham & Co., Inc., 452 F.3d 1097, 24 1101 (9th Cir. 2006) (citing Yapp v. Excel Corp., 186 F.3d 1222, 1231 (10th Cir. 1999); 25 see also Engleson v. Burlington Northern Railroad Co., 972 F.2d 1038, 1043 (9th Cir. 26 1992) (“Neither ignorance nor carelessness on the part of the litigant . . . provide grounds 27 for relief under Rule 60(b)(1).”) (internal quotation marks and citation omitted). Rather, 28 “[e]xcusable neglect ‘encompass[es] situations in which the failure to comply with a filing 1 deadline is attributable to negligence,’ and includes ‘omissions caused by carelessness.’” 2 Lemoge v. United States, 587 F.3d 1188, 1192 (9th Cir. 2009) (internal citations omitted). 3 The Supreme Court has stated that the determination of whether neglect is excusable 4 is an equitable one that depends on at least four factors: (1) the danger of prejudice to the 5 opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) 6 the reason for the delay; and (4) whether the movant acted in good faith. See Pioneer 7 Investment Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 394 (1993). The 8 Ninth Circuit has concluded that the Pioneer factors are not exclusive, but they “provide a 9 framework with which to determine whether missing a filing deadline constitutes 10 ‘excusable’ neglect.” Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 11 1997). 12 Plaintiff filed this case nearly three years ago and never served a Defendant. The 13 age of the case poses a danger of prejudice to the opposing party. In addition, throughout 14 the case, Plaintiff repeatedly, and without explanation, failed to timely comply with the 15 Court’s Orders. In the June 5, 2023 Order, the Court specifically identified delays 16 attributable to Plaintiff between December 2021 and July 2022 and December 2022 and 17 April 2023. It appears Plaintiff believes that because he was referring to the same officer 18 in each of his pleadings and motions, regardless of the spelling of that officer’s name, 19 Defendant evaded service by stating “Officer Barking” was not employed at MCSO, when 20 the officer who allegedly assaulted Plaintiff was still employed at MCSO. But even if 21 Plaintiff acted in good faith in his attempts to identify and serve Officer Barking (or 22 Perkins), the Court concludes Plaintiff is not entitled to relief under Rule 60(b)(1). 23 “[A] party merits relief under Rule 60(b)(6) if he demonstrates ‘extraordinary 24 circumstances which prevented or rendered him unable to prosecute his case.” Cmty. 25 Dental Servs. v. Tani, 282 3d 1164, 1168 (9th Cir. 2002). To show extraordinary 26 circumstances, the party must “demonstrate both injury and circumstances beyond his 27 control that prevented him from proceeding with the prosecution or defense of the action 28 in a proper fashion.” Id. Notwithstanding confusion regarding the date of the alleged 1| assault and Officer Perkins’s identity, Plaintiff knew Officer Perkins’s identity and badge number no later than July 5, 2023, when he filed the Motion to Amend Complaint and filed a proposed Amended Complaint that named “Officer Perkin” as the sole Defendant. 4) Although Plaintiff knew Officer Perkins’s identity, when he returned the service packet on 5 | October 6, 2023, he inexplicably listed “Officer Barking” on the Summons and USM-285. 6| Plaintiff failed to return the service packet for Officer Perkins, failed to respond to the September 28, 2023 Order to Show Cause, and failed to file any objections to the Report 8 | and Recommendation. Plaintiff has not shown injury and circumstances beyond his control 9| prevented him from complying with this Court’s Orders or serving Officer Perkins after July 5, 2023. The Court will therefore deny Plaintiff's Motion. 11 | ITIS ORDERED: 12 (1) ‘Plaintiff's Motion to Reopen Case (Doc. 36) is construed as a Motion for 13 | Relief from Judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. So construed, the Motion is denied. 15 (2) This case must remain closed. 16 Dated this 23rd day of May, 2024. 17 Wichadl T. Hbhurdle Michael T. Liburdi 20 United States District Judge 21 22 23 24 25 26 27 28