Opinion
CIV-19-1137-D
11-22-2022
ALLEN ALEXANDER PARKS, Plaintiff, v. SHERIFF P.D. TAYLOR, et al., Defendants.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN UNITED STATES MAGISTRATE JUDGE
Plaintiff, a state prisoner appearing pro se and in forma pauperis, filed this action under 42 U.S.C. § 1983, alleging civil rights violations. (Docs. 1, 46). United States Chief District Judge Timothy D. DeGiusti referred the matter to United States Magistrate Judge Gary M. Purcell for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 4). It was subsequently transferred to the undersigned Magistrate Judge. (Doc. 42). As set forth fully below, the undersigned recommends that the Court DISMISS without prejudice the claims 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, as they have not been served with process within the time allowed.
I. Procedural Background
Plaintiff filed his original Complaint on December 5, 2019, naming seven Defendants: Robert Benjamin, Jason Everhart, Danny Honeycutt, Sean McKeehan, Tadasha Morris, FNU Taylor, and Matthew Yerby. (Doc. 1). On January 23, 2020, Judge Purcell entered an Order requiring service and a special report that directed Plaintiff to furnish the necessary service papers to the Court Clerk within 21 days (by February 13, 2020) and to file proof of service with the court for each defendant within 90 days of the Order (by April 22, 2020). (Doc. 11). Upon Plaintiff's request, the court granted an extension until March 11, 2020, for Plaintiff to furnish the necessary service papers. (Docs. 12, 14). The court did not refer to any extension of time for providing proof of service. (Doc. 14). Plaintiff provided the necessary service papers for the seven named Defendants on February 28, 2020 (Doc. 13), and the court issued summons on April 7, 2020 (Doc. 17). On June 4, 2020, Defendants Honeycutt, Taylor, Benjamin, and Yerby were served. (Docs. 18, 19, 20, 21). Proof of service was provided by the United States Marshals Service (USMS) on June 12, 2020. (Id.) Summons to Defendants Everhart and McKeehan were returned unexecuted on June 22, 2020. (Docs. 25, 26). On July 16, 2020, Defendant Tadasha Morris was served and proof of service was filed. (Doc. 30).
On November 6, 2020, Plaintiff filed an Amended Complaint (Doc. 46) naming eighteen Defendants: the seven original Defendants plus Ronnie Neal, Christopher Hendershot, Gene Bradley, the Board of County Commissioners of Oklahoma County, David Prater, Kelly Collins, Carri A. Remillard, Major Herron, Deputy Boren, Sergeant Whittington, and the State of Oklahoma. (Id. at 1; id. at Ex. 1, at 2-5). Pursuant to Federal Rules of Civil Procedure Rules 4(c)(1) and 4(m), Plaintiff had 90 days, until February 4, 2021, to serve a summons and a copy of the Amended Complaint on the previously unserved and new defendants.
Defendants Benjamin, Yerby, Taylor, and Honeycutt filed Motions to Dismiss the Amended Complaint on November 23, 2020. (Docs. 47, 48, 49). The Motions were granted in part and denied in part, leaving certain claims remaining against Defendants Benjamin, Yerby, Taylor, and Honeycutt. (Doc. 79, Report and Recc., filed Aug. 31, 2021; Doc. 94, Order adopting Report and Recc., filed March 23, 2022).
Plaintiff's claims against Defendants Remillard and the State of Oklahoma were dismissed after the court declined to exercise supplemental jurisdiction over state law claims in the Amended Complaint. (See Doc. 60, Report and Recc., filed Jan. 22, 2021; Doc. 69, Order adopting Report and Recc., filed Feb. 23, 2021).
On June 21, 2021, Plaintiff filed a motion requesting the court to order that an attorney representing Defendant Hendershot in another matter accept service of the Amended Complaint on Hendershot's behalf. (Doc. 78). On February 11, 2022, the court denied that motion and ordered Plaintiff to furnish the necessary service papers for Defendant Hendershot to the Court Clerk within 21 days (i.e., by March 4, 2022) and to complete service in accordance with Federal Rule of Civil Procedure 4 within 90 days of the Order (i.e., by May 12, 2022). (Doc. 91). Upon learning Plaintiff did not receive the court's Order, the court sua sponte granted an extension requiring the service papers be provided by June 1, 2022, and service to be completed by August 9, 2022. (Doc. 100).
Defendant Hendershot was served on June 3, 2022, and proof of service was filed on June 6, 2022. (Doc. 110).
To date, Plaintiff has not requested issuance of summons for the remaining eight Defendants added by the Amended Complaint (Neal, Bradley, the Board of County Commissioners of Oklahoma County, Prater, Collins, Herron, Boren, and Whittington), nor has he made any renewed attempt to serve Defendants Everhart and McKeehan.
II. Analysis
A. Plaintiff Has Failed to Take Reasonable Steps to Serve Defendants Everhart and McKeehan Within the 90-Day Time Limit, and the Claims Against Them Should Be Dismissed.
The court must, on its own motion, after notice to the Plaintiff, dismiss an action without prejudice against an unserved defendant if such service is not made within 90 days after the filing of the complaint. Fed.R.Civ.P. 4(m).
Plaintiff named Defendants Everhart and McKeehan in his original Complaint, and summons were returned unexecuted on both Defendants on June 22, 2020. (Docs. 1, 25, 26). Plaintiff named Defendants Everhart and McKeehan in his Amended Complaint, filed November 6, 2020. (Doc. 46, at Ex. 1, at 2). Plaintiff has not requested summons or pursued any additional attempts of service on Everhart and McKeehan. Plaintiff did not request discovery to facilitate service or take reasonable steps to discover the whereabouts of Defendants Everhart or McKeehan.
When the USMS is unable to effect service, the onus remains on the plaintiff to investigate and take reasonable steps to discover the whereabouts of the defendant to be served. See, e.g., Nichols v. Schmidling, 2012 WL 10350 at *2 (D. Kan. Jan. 3, 2012) (unpublished op.) (where attempted service by the USMS at residence of retired correctional officer was unsuccessful, plaintiff was required to submit sufficient information for service, and allegation that he had “great difficulty” locating addresses was insufficient to establish good cause). “Although he proceeds in forma pauperis, it is neither the role nor the responsibility of the Court or the [USMS] to investigate the whereabouts or to locate parties to a lawsuit.” Franks v. Waite, 2009 WL 640777 at *1 (D. Kan. Mar. 11, 2009) (unpublished op.) (dismissing defendants pursuant to Rule 4(m); both remaining defendants were no longer employed as correctional officers). In this case, the Court should dismiss without prejudice Plaintiff's claims against Defendants Everhart and McKeehan as they have not been served within the 90-day time limit set forth in Rule 4(m) of the Federal Rules of Civil Procedure.
B. Plaintiff has Failed to Serve Defendants Neal, Bradley, The Board of County Commissioners of Oklahoma County, Prater, Collins, Herron, Boren, and Whittington Within the 90-Day Time Limit.
Plaintiff filed his Amended Complaint on November 6, 2020, adding eleven new Defendants (Doc. 46), and he has only attempted service on one, Defendant Hendershot. (Docs. 78, 91, 100). Defendant Hendershot was successfully served on June 3, 2022. (Doc. 11). Plaintiff has not requested an additional extension of time or otherwise advanced any argument that there is good cause for his failure to have timely effected service on the eight remaining new defendants that are unserved. Accordingly, an extension of time is not mandated. See Fed.R.Civ.P. 4(m); Espinoza v. United States, 52 F.3d 838, 841 (10th Cir. 1995).
The court must nonetheless consider whether a permissive extension of time is warranted. Id. at 841. Considering the factors relevant to this determination, the undersigned notes that the statute of limitations has expired as to the majority of Plaintiff's claims. See id. at 842 (“‘[R]elief may be justified . . . if the applicable statute of limitations would bar the refiled action.'”) (quoting Fed.R.Civ.P. 4(m) advisory committee's note (1993)). Furthermore, it is evident from the docket and specifically Plaintiff's motion for service regarding Defendant Hendershot (Doc. 78) that he is aware of Federal Rule of Civil Procedure 4(m) and that service on the additional Defendants is required, and that he understands the process of obtaining service through the USMS. Plaintiff has not attempted to serve the named Defendants, and Plaintiff has not named as a defendant a federal official such that he is “faced with ‘the complex requirements of multiple service' under Rule 4(i).” Espinoza, 52 F.3d at 842. Additionally, there is no indication that any Defendant has attempted to evade service of process. Accordingly, the undersigned finds that a permissive extension of time to effect service of process upon the Defendants is not warranted.
Plaintiff's claims are subject to a two-year statute of limitations. See Alexander v. Oklahoma, 382 F.3d 1206, 1212 n.1 (10th Cir. 2004) (applying state's two-year statute of limitations to § 1983 actions); see Rhodes v. Langston Univ., 462 Fed.Appx. 773, 780 (10th Cir. 2011) (applying state's two-year statute of limitations to claims under the ADA). In his twenty-five claims, construed liberally, Plaintiff alleges various violations stemming mostly from three incidents on December 7, 2017, February 9, 2018, and February 28, 2018, at the Oklahoma County Detention Center. (See Doc. 46, at Exs. 1, 3). Plaintiff seeks solely monetary damages. (Doc. 46, at 6-7; Doc. 46, at Ex. 2, at 1-6).
Although Plaintiff appears pro se, he is required to comply with the same fundamental rules of procedure as any other litigant. Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994); cert denied, 513 U.S. 1090 (1995); Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992). Plaintiff's failure to achieve service pursuant to the Federal Rules of Civil Procedure, combined with the court's obligation to manage and control its caseload, warrant a dismissal of the named Defendants without prejudice. See Gripe v. City of Enid, 312 F.3d 1184, 1188 (10th Cir. 2002) (“The Federal Rules of Civil Procedure authorize sanctions, including dismissal . . . for failing to comply with court rules or any order of the court, see Fed.R.Civ.P. 41(b).”).
As of this date, a review of the court file reflects that Plaintiff has failed to serve summons and the Amended Complaint on Defendants Neal, Bradley, The Board of County Commissioners of Oklahoma County, Prater, Collins, Herron, Boren, and Whittington within or well beyond 90 days of filing the Amended Complaint. Plaintiff has failed to show good cause why he has not done so, or that an extension of time to effect service is warranted.Thus, in accordance with Fed.R.Civ.P. 4(m), it is recommended that the claims against Defendants Neal, Bradley, The Board of County Commissioners of Oklahoma County, Prater, Collins, Herron, Boren, and Whittington be dismissed without prejudice for failure to prosecute. Link v. Wabash R. Co., 370 U.S. 626, 633 (1962) (a district court may, in its discretion, dismiss a compliant for failure to prosecute even without affording notice of its intention to do so). This Report and Recommendation serves as notice to Plaintiff of the Court's intention to dismiss his claims without prejudice as to these Defendants, and Plaintiff has the opportunity to object, as set forth below. See Robledo-Valdez v. Smelser, 593 Fed.Appx. 771, 775 (10th Cir. 2014) (explaining that a district court may, without abusing its powers, dismiss a case without prejudice pursuant to Fed.R.Civ.P. 41(b) without attention to any particular procedures).
Since the commencement of this suit, Plaintiff has filed WDOK Case No. 19-CIV-1188-D and WDOK Case No. 20-CIV-205-D. Both suits involve many of the same Defendants as the present case. In 19-CIV-1188-D, Plaintiff names numerous Defendants including Neal, Bradley, The Board of County Commissioners of Oklahoma County, Herron, and Boren. In 20-CIV-205, Plaintiff again names numerous Defendants including Neal, Bradley, The Board of County Commissioners of Oklahoma County, Herron, and Boren.
VI. Recommendation and Notice of Right to Object.
Based on the foregoing, the undersigned recommends that the Court DISMISS without prejudice the claims 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, as they have not been served with process within the time allowed.
The undersigned advises Plaintiff of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before December 13, 2022, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Plaintiff that failure to file a timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation does not terminate the referral in the present case.