Reyes 141783 v. Elijah

• Court: District Court, D. Arizona
• Decided: March 26, 2020
• Docket: 2:19-cv-00956
• Status: Unknown

Opinion

1 WO SH 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Narcisco Kiko Reyes, IV, No. CV 19-00956-PHX-MTL (MTM) 10 Plaintiff, 11 v. ORDER 12 Itoro Elijah, et al., 13 Defendants.

14 15 Plaintiff Narcisco Kiko Reyes, IV, who is currently confined in Arizona State Prison 16 Complex-Lewis, brought this civil rights action pursuant to 42 U.S.C. § 1983. (Doc. 6.) 17 Before the Court is Defendant Centurion’s Motion to Dismiss for failure to timely serve, 18 which Plaintiff opposes. (Docs. 25, 33.)1 19 I. Background 20 Upon screening Plaintiff’s First Amended Complaint (Doc. 6) under 28 U.S.C. 21 § 1915A(a), the Court determined that Plaintiff stated Eighth Amendment medical care 22 claims against former Arizona Department of Corrections (ADC) Director Charles Ryan 23 in his official capacity, ADC’s contracted healthcare provider Corizon, and medical 24 provider J. Whitman. (Doc. 16 at 6.) Because Defendant Ryan is no longer the ADC 25 Director, the Court substituted Interim ADC Director Joseph Profiri in his official capacity 26 for Defendant Ryan. (Id. at 7.) Likewise, because Centurion of Arizona took over as 27

28 1 Plaintiff was advised of his right and obligation to respond to the Motion to Dismiss as well as the requirements of a response. (Doc. 26.) 1 ADC’s contracted healthcare provider, the Court directed Corizon to respond to Plaintiff’s 2 claim for money damages, added Centurion as a Defendant, and ordered Centurion to 3 answer Plaintiff’s claim for injunctive relief. (Id. at 6–7.) The Court dismissed the 4 remaining claims and Defendants. (Id. at 8.) Thereafter, David Shinn became ADC 5 Director and answered Plaintiff’s First Amended Complaint. (Doc. 19.)2 6 II. Centurion’s Motion to Dismiss 7 A. Defendant’s Argument 8 Centurion moves the Court to dismiss it from the action because it was not timely 9 served. (Doc. 25 at 1.) Centurion points out that pursuant to the Court’s screening Order, 10 Plaintiff was required to obtain a waiver of service or complete service upon it within 90 11 days of filing the Complaint or within 60 days of the screening Order, whichever is later. 12 (Id. at 2.) On January 8, 2020—92 days after the Court issued its screened Order—the 13 U.S. Marshals delivered the service documents to Centurion’s Arizona facility located at 14 1850 W. Rio Salado Parkway in Tempe, Arizona. (Doc. 24.) Thus, Centurion argues that 15 Plaintiff’s “lawsuit was served outside of the 60[-]day window set in the Court’s screening 16 Order,” and it should be dismissed from the action pursuant to Federal Rule of Civil 17 Procedure 4(m).3 18 B. Legal Standard 19 Federal Rule of Civil Procedure 4(m) provides that if a summons and complaint are 20 not served upon a defendant within 90 days after filing, the court shall, after notice to the 21 plaintiff, either dismiss the action or, if the plaintiff shows good cause for the failure, direct 22 that service be effected within a specified time. The Ninth Circuit has explained that Rule 23 4(m) “requires a district court to grant an extension of time when the plaintiff shows good 24 cause for the delay. A plaintiff may demonstrate good cause by showing that he made a 25

26 2 The Court will therefore dismiss Defendant Profiri from the action. 27 3 Centurion also implies that service was not actually effected because the Tempe address where the service documents were delivered is not its address for accepting service. 28 (See Doc. 25 at n.2.) Because the Court is extending the service deadline and ordering service to be made to Centurion’s correct address, this argument is irrelevant. 1 reasonable and diligent effort to effect service. See Electrical Specialty Co. v. Road & 2 Ranch Supply, Inc., 967 F.2d 309, 312 (9th Cir. 1992). “Additionally, the rule permits the 3 district court to grant an extension even in the absence of good cause.” Efaw v. Williams, 4 473 F.3d 1038, 1040 (9th Cir. 2007) (internal citations omitted) (emphasis in original). 5 Courts should give the Rule 4 provisions a liberal and flexible construction. See Borzeka 6 v. Heckler, 739 F.2d 444, 447 (9th Cir. 1984). When determining whether an extension 7 for service is warranted, a district court should consider factors such as prejudice to the 8 defendant, actual notice of a lawsuit, and eventual service. Efaw, 473 F.3d at 1041; see 9 Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993) (factors 10 to consider in the excusable-neglect determination include danger of prejudice, length of 11 delay, reason for delay, and whether party acted in good faith). 12 Under 28 U.S.C. § 1915(d), if a plaintiff is proceeding in forma pauperis, “[t]he 13 officers of the court shall issue and serve all process, and perform all duties in such cases.” 14 The U.S. Marshal therefore serves the summons and the complaint; however, the plaintiff 15 is still responsible for providing the Marshal with information necessary to locate each 16 defendant to be served. See Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994), 17 abrogated on other grounds, Sandin v. Conner, 515 U.S. 472 (1995). 18 C. Discussion 19 The record shows that Plaintiff submitted his service packets to the U.S. Marshals 20 on October 31, 2019. (See docket entries for October 31, 2019.) Unfortunately, Plaintiff 21 provided the wrong service address in his documents for Defendant Centurion, and 22 Plaintiff’s service documents were delivered at this address after the service deadline 23 expired. (See Doc. 24.) 24 Because Defendant Centurion was not properly served at the correct service address, 25 service upon Defendant Centurion will be quashed. However, Centurion makes no 26 argument that it would be prejudiced if time for service were extended, this action is still 27 in its early stages, and there is no evidence of bad faith from Plaintiff. Thus, the Court 28 finds good cause for the failure to serve. The Court will permit Plaintiff to cure his failure to properly serve Centurion, as the Ninth Circuit has suggested that courts “be generally more solicitous of the rights of pro se litigants, particularly when technical jurisdictional 3.) requirements are involved.” Borzeka, 739 F.2d at 448. Accordingly, the Court will extend 4 the service deadline by 60 days to allow Centurion to be properly served according to the 5 | requirements of Rule 4(e). 6| ORDERED: 7 (1) The reference to the Magistrate Judge is withdrawn as to Defendant 8 | Centurion’s Motion to Dismiss (Doc. 25). 9 (2) Service on Defendant Centurion (Doc. 24) is quashed. 10 (3) Defendant Centurion’s Motion to Dismiss (Doc. 25) is denied. 11 (4) The Clerk of Court shall complete a service packet for Defendant Centurion 12 | with Centurion’s address at: 13 Centurion of Arizona, LLC c/o Statutory Agent 14 CT Corporation System 15 Phoenix, AZ 85012 and forward it to the United States Marshal Service. 17 (5) Service shall be made on Defendant Centurion at the address above within 18 | 60 days of the date of this Order by the United States Marshal Service pursuant to Rule 19 | 4(e) of the Federal Rules of Civil Procedure. 20 (6) Defendant Profiri is dismissed from the action. 21 Dated this 26th day of March, 2020. 22 Wicked T Shunde Michael T. Liburdi 25 United States District Judge 26 27 28