Herrera 152559 v. Unknown Party

• Court: District Court, D. Arizona
• Decided: September 23, 2024
• Docket: 2:24-cv-00413
• Status: Unknown

Opinion

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

8 Jesse Herrera, ) No. CV-24-00413-PHX-DLR (ASB) ) 9 ) Plaintiff, ) REPORT AND RECOMMENDATION 10 v. ) )

11 ) Unknown Party, et al., ) 12 ) Defendants. ) 13 ) ) 14 15 TO HON. DOUGLAS L. RAYES, SENIOR UNITED STATES DISTRICT JUDGE: 16 A review of the docket in this matter shows no timely service has been completed. 17 For the reasons described below, undersigned recommends the matter be dismissed for 18 failure to serve. 19 A. Factual Background 20 Plaintiff Jesse Herrera filed a letter on February 28, 2024, commencing this action. 21 (Doc. 1.) Plaintiff’s letter contained no caption. (See id.) The Court construed the letter 22 as a Complaint and issued an Order. (Doc. 5.) In that Order, the Court dismissed the 23 Complaint, allowing Plaintiff time to file an Amended Complaint, and requiring Plaintiff 24 file the filing fee or submit an application to proceed in forma pauperis. (Id.) 25 Plaintiff filed a pro se Amended Complaint pursuant to 42 U.S.C. § 1983 on April 26 25, 2024. (Doc. 8.) The Amended Complaint named COII Figueroa1 and Ryan Thornell

27 1 Plaintiff spelled this Defendant’s name “Figuerora” in the caption of the 28 Amended Complaint, but then referred to that individual as “Figueroa” in the body of the 1 as Defendants. (Id.) Plaintiff also filed an application to proceed in forma pauperis and a 2 motion to appoint counsel. (Docs. 6, 9.) In an Order filed June 12, 2024, the Court 3 ordered Plaintiff to pay the filing fee, denied the motion to appoint counsel, dismissed 4 Defendant Thornell, and ordered Plaintiff to timely serve Defendant COII Figueroa. 5 (Doc. 11.) As to service, the Court ordered Plaintiff to return the completed service 6 packet to the Clerk of Court within 21 days. (Id. at 7.) The Court further stated, “If 7 Plaintiff does not either obtain a waiver of service of the summons or complete service of 8 the Summons and First Amended Complaint on Defendant within 90 days of the filing of 9 the Complaint or within 60 days of the filing of this Order, whichever is later, the action 10 may be dismissed. Fed. R. Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(ii).” (Id.) Finally, the 11 Court referred this matter to undersigned for further pretrial proceedings as authorized 12 under 28 U.S.C. § 636(b)(1). (Id. at 9.) 13 On July 1, 2024, Plaintiff sent a letter to the Court indicating he was waiting for a 14 paralegal to assist him in completing the service packet. (Doc. 14.) Plaintiff requested 15 the Court provide him with additional time to return the service packet. (Id.) On July 3, 16 2024, the Court construed the letter as a motion for extension of time and granted the 17 motion. (Doc. 15.) The Court ordered Plaintiff to return the service packet in ten days. 18 (Id.) 19 On August 13, 2024, the Court issued an order to show cause why the matter 20 should not be dismissed for failure to comply with the Court’s orders and proceed with 21 service on Defendant Figueroa. (Doc. 16.) The Court ordered Plaintiff to show cause by 22 August 29, 2024. (Id.) 23 On August 21, 2024, Plaintiff filed a letter with the Court stating the packet had 24 not been returned to an error on prison staff’s part. (Doc. 18.) In an Order filed August 25 30, 2024, the Court set aside its order to show cause and ordered Plaintiff to provide his 26 completed service packet within 10 days. (Id.) However, the Court observed that the 27

Amended Complaint. (See Doc. 8.) The Court will continue to refer to this Defendant as 28 “Defendant Figueroa.” 1 docket showed Plaintiff had submitted the service packet was not complete, as the 2 address for “Figueroa” was “unknown.” (Id.) The Court reminded Plaintiff that Plaintiff 3 is required to comply with the Federal Rules of Civil Procedure and the Rules of Practice 4 for the U.S. District Court for the District of Arizona, and that failure to timely submit the 5 completed service packet may result in dismissal. (Id.) The Court provided Plaintiff with 6 an additional ten days to submit the completed packet to the Court. (Id.) 7 On September 16, 2024, Plaintiff filed another letter with the Court. (Doc. 20.) In 8 that letter, Plaintiff repeated what he had stated in his motion to appoint counsel – that he 9 does not know how to represent himself and requires assistance. (Id.) Plaintiff further 10 indicated that the prison’s paralegal has not been helpful and he does not believe it is 11 right that he has been paying a filing fee for this case. (Id.) He indicated he does not 12 know the address for Defendant Figueroa. (Id.) He repeatedly expressed his frustration 13 with the Court’s ruling that denied him counsel in this case. (See id.) In the letter, 14 Plaintiff wrote about this matter in the past tense and expressed that he has had to “rest 15 his case.” (See id.) 16 To date, no completed service packet has been provided to the Court. 17 It is against this backdrop that undersigned considers the relevant Rules and 18 controlling case law. 19 B. Analysis 20 Rule 4 of the Federal Rules of Civil Procedure governs service of process. Rule 21 4(m) sets forth the time limits for service and directs that if a defendant is not served 22 within 90 days after the complaint is filed, the Court, on its own after notice to the 23 plaintiff, “must dismiss the action without prejudice against that defendant or order that 24 service be made within a specified time.” Rule 4(m) continues, “But if the plaintiff 25 shows good cause for the failure, the court must extend the time for service for an 26 appropriate period.” “At a minimum, ‘good cause’ means excusable neglect.” Boudette 27 v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991) (analyzing good cause in the context of 28 Rule 4(j)). Further, a plaintiff may “be required to show the following: (a) the party to be 1 served personally received actual notice of the lawsuit; (b) the defendant would suffer no 2 prejudice; and (c) plaintiff would be severely prejudiced if his complaint were 3 dismissed.” Id. (citing Hart v. United States, 817 F.2d 78, 80-81 (9th Cir. 1987)). 4 Indeed, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, a district court 5 may dismiss an action due to a plaintiff’s failure to prosecute or to comply with court 6 orders. See Link v. Wabash R.R. Co., 370 U.S. 626, 629-30 (1962) (a court’s authority to 7 dismiss for lack of prosecution is necessary to prevent undue delays in the disposition of 8 pending cases and to avoid congestion in the calendars of the district courts); Ferdik v. 9 Bonzelet, 963 F.2d 1258, 1260 (1992) (a district court may dismiss an action for failure to 10 comply with any order of the court). 11 Here, Plaintiff was specifically warned that failure to comply with Rule 4 may 12 result in dismissal of his action. (Docs. 11, 19.) On the record before it, the Court cannot 13 conclude that Plaintiff has shown “good cause” as defined in Boudette. 923 F.2d at 756. 14 While undersigned recognizes Plaintiff is incarcerated and self-represented, the District 15 Judge has already assessed Plaintiff’s incarceration and determined that “Plaintiff is in no 16 different position than many pro se prisoner litigants.” (Doc. 11 at 5.) The Court has 17 provided multiple extensions of time to provide the service packet. The Court cannot 18 give Plaintiff legal advice on how to prosecute his case. Further, undersigned cannot find 19 that the unserved defendant has received actual notice of this action and would suffer no 20 prejudice, and undersigned cannot find that Plaintiff would be severely prejudiced if his 21 Complaint were dismissed as to the unserved defendant. See Boudette, 923 F.2d at 756. 22 In sum, the Court finds Plaintiff has failed to prosecute this action as required regarding 23 the unserved defendant (Defendant Figueroa). Consequently, dismissal of the Amended 24 Complaint under Rule 41(b) is warranted. 25 In light of the foregoing, undersigned will recommend that the Complaint be 26 dismissed without prejudice, as Defendant Figueroa is the only remaining defendant in 27 this action. 28 // 1 RECOMMENDATION 2 IT IS RECOMMENDED that Plaintiff's Complaint (Doc. 1) be dismissed without prejudice, and that the Clerk of Court terminate those defendants from this 4] action accordingly. 5 This recommendation is not an order that is immediately appealable to the Ninth 6| 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. The 8 | parties shall have 14 days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); 10) Fed. R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file 11.) aresponse to the objections. 12 Failure to timely file objections to the Magistrate Judge’s Report and 13 | Recommendation may result in the acceptance of the Report and Recommendation by the 14) District Judge without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 15) 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the 16) Magistrate Judge will be considered a waiver of a party’s right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge’s 18 | recommendation. See Fed. R. Civ. P. 72. 19 Dated this 20th day of September, 2024. 20 me f \ 21 \ 22 73 Honorable Alison S. Bachus United States Magistrate Judge 24 25 26 27 28