Valentini 268586 v. Shinn

• Court: District Court, D. Arizona
• Decided: October 22, 2024
• Docket: 2:22-cv-01612
• Status: Unknown

Opinion

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

9 Rick Valentini, No. CV-22-1612-PHX-MTL (DMF)

10 Plaintiff,

11 v. REPORT AND RECOMMENDATION

12 David Shinn, et al.,

13 Defendants. 14 15 16 TO THE HONORABLE MICHAEL T. LIBURDI, UNITED STATES DISTRICT 17 JUDGE: 18 This matter is referred to the undersigned United States Magistrate Judge Deborah 19 M. Fine pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all 20 pretrial proceedings as authorized under 28 U.S.C. § 636(b)(1) (Doc. 21 at 21). 21 For the reasons set forth below, it is recommended that this matter be dismissed 22 without prejudice for Plaintiff’s failure to serve remaining Defendant Unknown Bomboy 23 (also known as “James Bomboy” and referred to herein as “Defendant Bomboy”). 24 I. BACKGROUND AND PROCEDURAL POSTURE 25 Throughout these proceedings, Plaintiff Rick Valentini (“Plaintiff”) has been and 26 remains confined in an Arizona State Prison Complex. In September 2022, Plaintiff filed 27 a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1). On December 6, 28 2022, the Court dismissed the Complaint with leave to file a first amended complaint (Doc. 1 13). Later, Plaintiff’s First Amended Complaint was dismissed with leave to file a second 2 amended complaint (Docs. 16, 18). Plaintiff thereafter filed his Second Amended 3 Complaint (Doc. 19). 4 On October 17, 2023, the Court dismissed without prejudice all counts except a 5 portion of Count Four and dismissed without prejudice all defendants except Defendant 6 Bomboy (Doc. 21). The Court concluded that “[l]iberally construed, Plaintiff has stated a 7 First Amendment retaliation claim against Defendant Bomboy in Count Four, and 8 Defendant Bomboy will thus be required to answer that portion of Count Four” (Id. at 18). 9 In the October 17, 2023, Order, the Court further directed that “Plaintiff must 10 complete and return the service packet to the Clerk of Court within 21 days of the date of 11 filing of this Order. The United States Marshal will not provide service of process if 12 Plaintiff fails to comply with this Order” (Id. at 19). Plaintiff was warned that if “Plaintiff 13 does not either obtain a waiver of service of the summons or complete service of the 14 Summons and Second Amended Complaint on Defendant within 90 days of the filing of 15 the Complaint or within 60 days of the filing of this Order, whichever is later, the action 16 may be dismissed. Fed. R. Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(ii)” (Id. at 19-20). Plaintiff 17 was further warned that if he “fails to timely comply with every provision of this Order, 18 including these warnings, the Court may dismiss this action without further notice. See 19 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss 20 an action for failure to comply with any order of the Court)” (Id. at 19). 21 On November 17, 2023, the Court issued an Order to Show Cause for Plaintiff’s 22 failure to timely return the completed service packet for Defendant Bomboy (Doc. 23). 23 The Order to Show Cause was returned as undeliverable (Doc. 25). Thereafter, Plaintiff 24 filed a motion for status (Doc. 27). On December 5, 2023, the Court granted the motion 25 for status and directed that the Clerk of Court provide another service packet for Defendant 26 Bomboy to Plaintiff (Doc. 28). 27 Plaintiff timely filled out and returned the service packet, which was forwarded to 28 the United States Marshal to attempt service of process on Defendant Bomboy. On 1 February 6, 2024, the service packet was returned unexecuted for Defendant Bomboy with 2 the following notation by the Deputy United States Marshal who attempted service:

3 Employer informed that Mr. John Bomboy who’s real name is “James 4 Bomboy”. Is no longer employed as a corrections officer and resigned on 14 December 2021. 5 (Doc. 31). 6 On February 8, 2024, the Court directed that the Arizona Attorney General’s Office 7 provide “under seal, the last known address of Defendant James Bomboy or, alternatively, 8 a Notice indicating the Arizona Attorney General’s Office or Arizona Department of 9 Corrections Rehabilitation and Reentry will accept service of process on his behalf” (Doc. 10 32). The Court further ordered that upon “receipt of Defendant Bomboy’s last known 11 address, the Clerk of Court must prepare a service packet and forward it to the United States 12 Marshal Service for personal service” (Id. at 3). In the same Order, the Court nevertheless 13 reminded Plaintiff that it remained Plaintiff’s responsibility for providing a valid service 14 address for Defendant Bomboy (Id. at 1-2). 15 On February 14, 2024, the Arizona Attorney General’s Office (“AGO”) provided a 16 Notice of Filing stating that neither the AGO nor Arizona Department of Corrections 17 Rehabilitation and Reentry (“ADCRR”) would accept service for Defendant Bomboy; the 18 AGO submitted under seal ADCRR’s last known address for Defendant Bomboy (Docs. 19 33, 34). Because the last known address is a United States post office box, the Court 20 ordered that the United States Marshal make efforts to seek a waiver of service from 21 Defendant Bomboy by first class mail to Defendant Bomboy at the United States post 22 office box provided by the AGO and ADCRR (Doc. 38). Plaintiff was again reminded that 23 it was Plaintiff’s responsibility for providing a valid service address for Defendant Bomboy 24 (Id.). Plaintiff was warned that: 25

26 Defendant Bomboy may or may not waive service per the United States 27 Marshal mailing effort ordered herein. Thus, the Court will order that Plaintiff must timely provide a service packet for Defendant Bomboy 28 containing an additional address for the United States Marshal to make 1 further efforts to attempt service, including an address for attempt of personal service. 2 (Id. at 2). 3 The United States Marshal’s attempt to obtain a waiver of service from Defendant 4 Bomboy was unsuccessful; as Plaintiff is long aware, in March 2024, Rhea Tate rather than 5 Defendant Bomboy signed the certified return receipt mailing for the waiver of service sent 6 to Defendant Bomboy at the post office address (Doc. 41; see Doc. 43 at 3). Defendant 7 Bomboy did not thereafter provide or file a waiver of service. 8 On April 17, 2024, the Court issued an Order to Show Cause for Plaintiff’s failure 9 to comply with the Court’s February 20, 2024, Order (Doc. 43). The Order to Show Cause 10 set forth Plaintiff’s failure to provide a service packet for Defendant Bomboy containing 11 an additional address for the United States Marshal to make further efforts to attempt 12 service (Id.). The Order to Show Cause was also directed to Plaintiff’s failure to timely 13 serve Defendant Bomboy (Id.). The Court ordered that within 21 days, Plaintiff must: 14

15 return the service packet as to Defendant Bomboy with additional information for the United States Marshal to further attempt service or to 16 show cause in writing filed with the Court why this case should not be 17 dismissed for failure to timely serve Defendant Bomboy, failure to comply with this Court’s Orders, and failure to prosecute this matter. 18 (Id. at 3). After Plaintiff filed his response to the Court’s Order to Show Cause stating that 19 he had not received any additional service packets, on May 28, 2024, the Court issued an 20 order directing that “the Clerk’s Office to provide another service packet to Plaintiff for 21 Plaintiff to fill out and return to the Court within twenty-one (21) days with additional 22 service information for Defendant Bomboy” and warning that: 23

24 [i]f Plaintiff fails to timely return a new service packet with additional service information for the United States Marshal to further attempt service of 25 Defendant Bomboy and/or not timely complete service of Defendant 26 Bomboy, then this matter may be dismissed without prejudice. The Court is not inclined to extend the time for service again absent a motion for extension 27 of time containing a viable plan by Plaintiff for Plaintiff to obtain additional 28 service information for Defendant Bomboy. 1 (Doc. 46 at 2-3). The Order stated that:

2 Plaintiff is again put on notice that it is his responsibility and not the Court’s 3 or the United States Marshal’s Office to obtain accurate information for service of Defendant Bomboy. Neither the Court nor the United States 4 Marshal may conduct investigation on Plaintiff’s behalf (Docs. 32, 38). The 5 Court previously directed the Arizona Attorney General’s Office and the Arizona Department of Corrections Rehabilitation and Reentry (“ADCRR”) 6 to provide a last known address of Defendant Bomboy upon learning that 7 Defendant Bomboy no longer works for ADCRR, and there was compliance with the Court’s Order (Docs. 32, 33, 34, 38, 41, 43). The United States 8 Marshal has made several attempts at service of Defendant Bomboy, all of 9 which have been unsuccessful (Docs. 31, 41, 43). These attempts have included sending the waiver of service to the last known address of 10 Defendant Bomboy provided by ADCRR, which is a post office box. The 11 United States Marshal cannot reasonably attempt direct personal service of Defendant Bomboy at the last known address provided by ADCRR, which is 12 a post office box. 13 (Id. at 2). Plaintiff was contemporaneously provided with another service packet for 14 Defendant Bomboy (Doc. 46-1 to 46-6), which Plaintiff has not returned. 15 Plaintiff filed a response to the Court’s Order to Show Cause (Doc. 47). On June 16 17, 2024, the Court issued an order stating:

17 Plaintiff has now filed a response to the Court’s Order regarding Plaintiff 18 returning a service packet for Defendant Bomboy (Docs. 46, 47). In the response (Doc. 47), Plaintiff requests that the United States Marshal access 19 the post office box information card for the post office box provided for 20 Defendant James Bomboy, which was in Coolidge, AZ 85128 (see Docs. 32, 43). The post office box number in Coolidge, AZ 85128 was provided under 21 seal by counsel for ADCRR (see Docs. 32, 33, 34). The United States 22 Marshal does not have access to the post office’s post office box information card. Again, it is Plaintiff’s responsibility to provide service information for 23 Defendant Bomboy for the United States Marshal to attempt service. The 24 Court will order that the Clerk of Court provide Plaintiff two subpoena duces tecum packets for Plaintiff’s use to attempt to obtain service information for 25 Defendant James Bomboy so that the United States Marshal can re-attempt 26 service in an additional (third) way on Defendant James Bomboy. 27 (Doc. 48 at 3). Plaintiff was contemporaneously provided “two unissued subpoena forms 28 and two USM-285 forms for subpoena service, both of which Plaintiff must fill out 1 completely and attach to any appropriate motion for issuance of subpoena in compliance 2 with General Order 18-19” (Id. at 4). 3 Plaintiff thereafter filed two requests for issuance of a subpoena, but the requests 4 did not comply with applicable legal requirements (Docs. 49, 50, 51, 52). On July 25, 5 2024, the Court granted Plaintiff’s third motion for a subpoena directed to obtaining service 6 information on Defendant Bomboy (Docs. 53, 54), and the Court extended the time for 7 completing service on Defendant Bomboy to September 22, 2024 (Doc. 54). On July 25, 8 2024, the issued subpoena with a documents return date of August 24, 2024, was forwarded 9 to the United States Marshal Service, and on July 29, 2024, service was returned as 10 executed on Postmaster Sheree Campbell on July 26, 2024 (Doc. 56). There have been no 11 filings in this matter after such time. 12 To date, Defendant Bomboy has not been served. To date, it appears that Plaintiff 13 has not taken any steps to obtain service information for or to otherwise serve Defendant 14 Bomboy other than as described above. Indeed, Plaintiff has not made any filing in this 15 matter after his July 23, 2024, request for a subpoena, which resulted in the subpoena being 16 promptly issued and served in July 2024 (Docs. 53, 54, 56). The return date for the 17 subpoena was in August 2024, which is now almost two months ago. Not only has 18 Defendant Bomboy not been served, but Plaintiff has not provided the Court with any 19 additional plan, let alone a viable plan, for service of Defendant Bomboy. 20 II. DISCUSSION 21 The issue before the Court is whether to grant Plaintiff an extension of time to serve 22 Defendant Bomboy pursuant to Fed. R. Civ. P. 4(m) or whether to dismiss unserved 23 Defendant Bomboy without prejudice for failure to timely serve. A federal court does not 24 have “personal jurisdiction over a defendant unless the defendant has been served in 25 accordance with Fed.R.Civ.P. 4.” Travelers Cas. & Sur. Co. of America v. Brenneke, 551 26 F.3d 1132, 1135 (9th Cir. 2009) (internal quotation marks and citations omitted). Rule 27 4(m) provides that:

28 [i]f a defendant is not served within 90 days after the complaint is filed, the 1 court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service must 2 be made within a specified time. But if the plaintiff shows good cause for the 3 failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under 4 Rule 4(f), 4(h)(2), or 4(j)(1), or to service of a notice under Rule 5 71.1(d)(3)(A). 6 Fed. R. Civ. P. 4(m). A “plaintiff is responsible for having the summons and complaint 7 served within the time allowed by Rule 4(m) and must furnish the necessary copies to the 8 person who makes service.” Fed. R. Civ. P. 4(c)(1). 9 There are “two avenues for relief” from the time limit in Rule 4(m). Lemoge v. 10 United States, 587 F.3d 1188, 1198 (9th Cir. 2009). The first, which is “mandatory,” 11 requires a district court to “extend time for service upon a showing of good cause.” Id. 12 (citing In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001)). Under the second, which is 13 discretionary, “if good cause is not established, the district court may extend time for 14 service upon a showing of excusable neglect.” Id. Although the Ninth Circuit has not 15 “articulate[d] a specific test that a court must apply in exercising its discretion under Rule 16 4(m),” Sheehan, 253 F.3d at 513, a Court may consider factors such as “a statute of 17 limitations bar, prejudice to the defendant, actual notice of a lawsuit, and eventual service.” 18 Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007) (internal quotations omitted). 19 A. The Record Does Not Establish Good Cause for a Mandatory Extension of 20 Time 21 For a mandatory extension of time, Plaintiff must show good cause. Lemoge, 587 22 F.3d at 1198. Good cause to avoid dismissal may be demonstrated by establishing, at 23 minimum, excusable neglect. See Boudette v. Barnette, 923 F.2d 754, 756 24 (9th Cir. 1991). In addition to excusable neglect, a plaintiff may be required to show the following factors to bring the excuse to the level of good cause: 25 “(a) the party to be served personally received actual notice of the lawsuit; 26 (b) the defendant would suffer no prejudice; and (c) plaintiff would be severely prejudiced if his complaint were dismissed.” 27 Id. at 1198 n. 3; see also Link v. Wabash R.R. Co., 370 U.S. 626, 629-30 (1962) (holding a 28 court's authority to dismiss for lack of prosecution is necessary to prevent undue delays in 1 the disposition of pending cases and to avoid congestion in the calendars of the district 2 courts); Ferdik, 963 F.2d at 1260 (holding that a district court may dismiss an action for 3 failure to comply with any order of the court). Here, Plaintiff has not shown excusable 4 neglect, and there is not good cause for an extension of time to effectuate service. 5 Nothing in the record suggests that Defendant Bomboy received actual notice of 6 Plaintiff’s lawsuit. Defendant Bomboy has not been served with process, has not made an 7 appearance before the Court, and has not contacted the Court in any manner. Indeed, the 8 United States Marshal’s attempt to complete service of Defendant Bomboy reflected that 9 Defendant Bomboy was no longer employed at the address Plaintiff provided or even as a 10 corrections officer. Accordingly, factor (a) does not support a finding of good cause. 11 As for factor (b), while the loss of “a quick victory” is not prejudicial, Bateman v. 12 United States Postal Serv., 231 F.3d 1220, 1225 (9th Cir. 2000), the events at issue are 13 alleged by Plaintiff to have occurred in November 2021 (Doc. 19 at 10; Doc. 21 at 9-10 14 (Plaintiff “alleges that on November 9, 2021, Defendant Bomboy ‘approached [Plaintiff’s] 15 cell and physically threatened [Plaintiff] with bodily harm and threatened to destroy 16 [Plaintiff’s] property if [Plaintiff] did not stop asking ‘his’ officers for inmate letters . . . 17 and informal complaint resolution [forms].’”) (alterations in original)). The continued 18 passage of time is prejudicial to Defendant Bomboy given the difficulty in obtaining 19 evidence, such as witness testimony, as the alleged events become even older. Indeed, 20 Defendant Bomboy had no control over the timing of Plaintiff’s lawsuit or Plaintiff’s 21 repeated failures to state any claims against him before the Second Amended Complaint, 22 which was filed in 2023. 23 As for factor (c), “[a] dismissal for untimely service is required to be a dismissal 24 without prejudice[,]” thereby allowing a “plaintiff to refile the complaint and effect timely 25 service.” United States v. 2,164 Watches, More or Less, Bearing a Registered Trademark 26 of Guess?, Inc., 366 F.3d 767, 773 (9th Cir. 2004). If a plaintiff cannot refile a complaint 27 due to a statute of limitations, however, dismissal would severely prejudice a plaintiff. See, 28 e.g., Trueman v. Johnson, No. CIV 09-2179-PHX-RCB(DKD), 2011 WL 6721327, at *4 1 (D. Ariz. Dec. 21, 2011). Because “Section 1983 does not include its own statute of 2 limitations[,] . . . federal courts apply the statute of limitations governing personal injury 3 claims in the forum state.” Finkle v. Ryan, 174 F.Supp.3d 1174, 1186 (D. Ariz. 2016). In 4 Arizona, where Plaintiff alleges the events in his Complaint took place in part, the statute 5 of limitations “for personal injury claims is two years.” Id. Here, dismissal could, and 6 likely would, bar Plaintiff from refiling his Complaint. This factor weighs strongly in favor 7 of not dismissing the matter for failure to serve. 8 Nevertheless, Plaintiff has had approximately a year to serve Defendant Bomboy 9 and has exhausted all avenues Plaintiff pursued without successfully serving Defendant 10 Bomboy. The United States Marshal tried to serve Defendant Bomboy as Plaintiff 11 instructed at what Plaintiff believed was Defendant Bomboy’s place of employment as a 12 correctional officer. Given that Defendant Bomboy had ended employment as a 13 correctional officer between the alleged events and the United States Marshal’s attempt to 14 serve Defendant Bomboy per Plaintiff’s instructions, the Court ordered the AOG and 15 ADCRR to notify whether they would accept service for Defendant Bomboy; they will not 16 accept service for Defendant Bomboy. The Court ordered the last known address for 17 Defendant Bomboy be provided by AOG and ADCRR, which turned out to be a post office 18 box. The United States Marshal attempted to obtain Defendant Bomboy’s waiver of 19 service by mailing a waiver to the post office box, but the efforts were unsuccessful. A 20 subpoena to the post office’s postmaster was issued and served on Plaintiff’s request, but 21 Plaintiff still has not provided additional service information for Defendant Bomboy. 22 Importantly, Plaintiff has not provided the Court with any additional plans he has to 23 effectuate service of Defendant Bomboy. Given the efforts previously made towards 24 service and Plaintiff’s lack of any proposed additional plan for service of Defendant 25 Bomboy, the Court has no confidence that an extension of time would likely result in 26 service of Defendant Bomboy. 27 Accordingly, good cause for an extension of time to serve does not exist on the 28 record before the Court. Thus, an extension of time to serve is not mandatory. 1 B. A Discretionary Extension of Time is Unwarranted 2 Where good cause does not exist, the Court may grant a discretionary extension of 3 time for Plaintiff to serve Defendants with the Complaint. The Court has “broad” but not 4 limitless “discretion to extend time for service under Rule 4(m).” Efaw, 473 F.3d at 1041. 5 In deciding whether to extend the time for service, “a district court may consider factors 6 ‘like a statute of limitations bar, prejudice to the defendant, actual notice of a lawsuit, and 7 eventual service.’” Id. (quoting Troxell v. Fedders of N. Am., Inc., 160 F.3d 381, 383 (7th 8 Cir. 1998)). 9 The Court has already granted numerous extensions of time to serve Defendant 10 Bomboy in this matter. Also discussed above, the applicable factors do not warrant a 11 discretionary additional extension to serve on this record. 12 III. CONCLUSION 13 On this record and for reasons set forth above, it is recommended that the Court 14 dismiss the remaining claim (First Amendment retaliation in Count IV of the Second 15 Amended Complaint) against Defendant Bomboy, and hence this action, without prejudice. 16 Accordingly, 17 IT IS RECOMMENDED that the claim against Defendant Bomboy, and hence 18 this action, be dismissed without prejudice and that the Clerk of Court be directed to 19 terminate this matter. 20 This recommendation is not an order that is immediately appealable to the Ninth 21 Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal 22 Rules of Appellate Procedure should not be filed until entry of the District Court’s 23 judgment. The parties shall have fourteen days from the date of service of a copy of this 24 recommendation within which to file specific written objections with the Court. See 28 25 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. The parties shall have fourteen days within which 26 to file responses to any objections. Failure to file timely objections to the Magistrate 27 Judge’s Report and Recommendation may result in the acceptance of the Report and 28 Recommendation by the District Court without further review. See United States v. Reyna- 1|| Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual 2|| determination of the Magistrate Judge may be considered a waiver of a party’s right to || appellate review of the findings of fact in an order or judgment entered pursuant to the 4|| Magistrate Judge’s recommendation. See Fed. R. Civ. P. 72. 5 In addition, LRCiv 7.2(e)(3) provides that “[u]nless otherwise permitted by the 6 || Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall 7\| not exceed ten (10) pages.” 8 Dated this 21st day of October, 2024. 9 lf. + 4H, ll White UY. Ante Honorable Deborah M. Fine United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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