Opinion
Case No. 04-2101-JWL.
October 21, 2004
MEMORANDUM AND ORDER
This case comes before the court on pro se plaintiff Robert W. Quarles' responses (docs. 4 6) to the court's orders to show cause (docs. 3 5) why this case should not be dismissed for failure to timely effect valid service of process on defendant Vickie L. Williams. For the reasons explained below, the court will decline to extend the time for plaintiff to serve defendant and will dismiss this case without prejudice pursuant to Fed.R.Civ.P. 4(m).
I. Background
Plaintiff filed this lawsuit on March 11, 2004. His complaint alleges that the defendant brought false claims of abuse and stalking against him and that the defendant lied in open court when she stated that plaintiff "held me against my well [sic]." Apparently, this occurred in Case No. 0201692, Williams v. Quarles, in Wyandotte County District Court. Plaintiff's complaint states that he is seeking a new trial, his legal fees and court costs, and $500 for college degree coursework that he missed because of the lawsuit.
On June 18, 2004, plaintiff filed a certified mail receipt reflecting that a piece of mail that he had sent to defendant was delivered on March 20, 2004. The docket sheet reflects that no summons was issued when plaintiff filed his lawsuit or at any time thereafter.
On July 23, 2004, the magistrate judge issued to plaintiff a notice and order to show cause (doc. 3) why this case should not be dismissed for failure to timely effect valid service of process on defendant and for lack of subject matter jurisdiction. After reviewing plaintiff's response to that order to show cause (doc. 4), this court issued another order (doc. 5) which took under advisement the aspect of plaintiff's response to the court's order to show cause regarding service of process, vacated the aspect of the order to show cause regarding subject matter jurisdiction, and directed plaintiff to show cause why the court should not exercise its discretion and decline to extend the time to effect valid service of process and consequently dismiss this case without prejudice because it appears that plaintiff's complaint fails to state a claim upon which relief can be granted and therefore it would be futile to extend the time for service.
Plaintiff has now responded to the court's second order to show cause (doc. 6). In his response, he explains that he was wronged in the lower courts of Kansas and that he wants to be heard in a new trial which would bring out the truth of the matter in a properly recorded fashion. He further explains once again that he sent a copy of the complaint to the defendant via certified mail, return receipt requested.
III. Analysis
As a threshold matter, the court finds that plaintiff did not timely serve the defendant. The court will assume, as plaintiff argues, that he did in fact send a copy of the complaint to defendant via certified mail, return receipt requested, as evidenced by the return receipt that plaintiff filed with the court on June 18, 2004 (doc. 2) (evidencing that defendant received the item on March 20, 2004, which was well within the 120-time limit for service of process). Nonetheless, Rule 4(c)(1) of the Federal Rules of Civil Procedure states that "[a] summons shall be served together with a copy of the complaint." In this case, the docket sheet clearly reflects, and plaintiff does not dispute, that no summons has been issued. Because no summons has been issued, plaintiff could not have properly served defendant with the summons and a copy of the complaint.
Given plaintiff's failure to timely serve the defendant, then, the court turns to Rule 4(m) of the Federal Rules of Civil Procedure, which provides in relevant part that
[i]f service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.
Under this rule, the court employs a two-step analysis. Espinoza v. United States, 52 F.3d 838, 841 (10th Cir. 1995). First, the plaintiff is entitled to a mandatory extension of time if the plaintiff demonstrates good cause for failing to timely effect service. Id. Second, if the plaintiff fails to show good cause, the court may exercise its discretion and either dismiss the case without prejudice or extend the time for service. Id.; see also Fed.R.Civ.P. 4(m) advisory committee notes to the 1993 amendments to subdivision (m) ("The new subdivision . . . authorizes the court to relieve a plaintiff of the consequences of an application of this subdivision even if there is no good cause shown.").
Thus, the court must first inquire whether plaintiff is entitled to a mandatory extension of time. Rule 4(m) does not define good cause. The Tenth Circuit has interpreted the phrase narrowly, rejecting inadvertence, neglect, mistake of counsel, or ignorance of the rules as good cause for untimely service. In re Kirkland, 86 F.3d 172, 174-76 (10th Cir. 1996). Moreover, pro se litigants are obligated to follow Rule 4's service requirements. Id.; DiCesare v. Stuart, 12 F.3d 973, 980 (10th Cir. 1993). In this case, plaintiff offers the following explanation: the pro se packet that he received from the clerk's office stated that if he paid the filing fee (which he did) "the clerk will sign and seal the summons(es) and return them to you along with the copies of the complaint for the defendant(s)"; he was waiting for the clerk to contact him "regarding when the court date was to be set and the summons document"; and "[n]o forms for a Summons was arranged, given to me or received from the court clerk to me." Plaintiff apparently misinterpreted the instructions in the pro se packet to suggest that the clerk's office would prepare the summons. To the contrary, the pro se packet states that the clerk will "sign and seal the summons(es) and return them to you" (emphasis added), thus suggesting that plaintiff was to prepare and present the summons for the clerk to sign and seal. Indeed, Rule 4(b) of the Federal Rules of Civil Procedure states that the plaintiff, not the clerk, is responsible for preparing the summons. Fed.R.Civ.P. 4(b); see also Fed.R.Civ.P. 4 advisory committee notes to the 1993 amendments to subdivision (b) ("The . . . text makes clear that the responsibility for filling in the summons falls on the plaintiff, not the clerk of the court."). The plaintiff then presents the summons to the clerk, at which time the clerk signs, seals, and issues the summons if it is in proper form, Fed.R.Civ.P. 4(b), just as the pro se packet said the clerk would do. Accordingly, plaintiff's explanation demonstrates mere ignorance of the rules, which is insufficient to rise to the level of demonstrating good cause sufficient to warrant a mandatory extension of time, even for a pro se litigant. See, e.g., Espinoza, 52 F.3d at 841 (holding the pro se plaintiff had failed to show good cause to require a mandatory extension of time for service); DiCesare, 12 F.3d at 980 (affirming the district court's dismissal of pro se litigant's action under the former version of Rule 4(m) due to lack of proper service); Jones v. Frank, 973 F.2d 872, 873-74 (10th Cir. 1992) (same).
Pursuant to Espinoza, the court must next consider whether a permissive extension of time is warranted. Mindful of plaintiff's status as a pro se litigant, the court would ordinarily be fairly lenient on this matter. See, e.g., Davidson v. Meridian Automotive Systems, No. 03-2396-JWL, 2004 WL 392723, at *2 (D. Kan. Mar. 2, 2004) (reasoning that the plaintiff's status as a pro se litigant leans in favor of leniency in granting a permissive extension of time for serving the defendant). In this case, however, as the court explained in its last order to show cause, the court is nonetheless concerned that extending the time to effect valid service of process would be futile because it appears that this court would be unable to afford plaintiff the relief that he seeks in any event. The court explained:
Plaintiff claims that defendant's conduct violated his rights under § 1343 and his constitutional rights under the First and Fourteenth Amendments to the Constitution of the United States of America. Based on the allegations in plaintiff's complaint, however, the court cannot envision how plaintiff could plausibly be entitled to recover from defendant under any of these theories. . . .
The First and Fourteenth Amendments to the Constitution of the United States of America afford protection only against state action, not against action by private parties. See 2 Ronald D. Rotunda John E. Nowak, Treatise on Constitutional Law § 14.4 (3d ed. 1999) (discussing this general principle). Similarly, 42 U.S.C. § 1983 is limited to addressing deprivations of constitutional rights by persons acting under color of state law. Montgomery v. City of Ardmore, 365 F.3d 926, 935 (10th Cir. 2004). In this case, plaintiff's complaint contains no allegations from which it reasonably can be inferred that the defendant's conduct satisfies either the state action or the under-color-of-law requirements necessary to support constitutional or § 1983 claims. Furthermore, "[t]he Rooker-Feldman doctrine bars a party losing in state court what in substance would be appellate review of the state judgment in a United States district court, based on the losing party's claim that the state judgment itself violates the loser's federal rights." Johnson v. Riddle, 305 F.3d 1107, 1116 (10th Cir. 2002). Thus, to the extent that plaintiff's claims are based on his displeasure with the lawsuit in Wyandotte County District Court, those claims are likely barred by the Rooker-Feldman doctrine.
In plaintiff's response to the magistrate judge's order to show cause, he emphasized in bold, underlined type the portions of 28 U.S.C. § 1343(a)(1) and (2) that refer to 42 U.S.C. § 1985. He then quoted 42 U.S.C. § 1985 in its entirety. Thus, the court interprets his argument to be that defendant conspired to interfere with his civil rights. Plaintiff's reliance on this statute appears, however, to be misplaced. Section 1985 addresses five broad categories of conduct. "Three of the five broad categories . . . relate to institutions and processes of the federal government — federal officers, § 1985(1); federal judicial proceedings, the first portion of § 1985(2); and federal elections, the second part of § 1985(3)." Kush v. Rutledge, 460 U.S. 719, 724-25 (1983) (emphasis added). None of these categories of conduct are implicated here because it appears that plaintiff's claims arise from state court proceedings. The remaining two broad categories of conduct outlined in the second portion of § 1985(2) and the first portion of § 1985(3) relate to instances where the defendants' actions were "motivated by an intent to deprive their victims of the equal protection of the laws." Id. at 725. This means that there must have been "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Id. at 726. Here, plaintiff does not allege that any such racial or other class-based animus motivated defendant's alleged actions toward him.
Order to Show Cause (doc. 5), at 4-5.
In plaintiff's response to this order to show cause, he does not attempt to clarify the nature of his claims in any manner that would state a legally cognizable claim by, for example, arguing that defendant's alleged conduct satisfied the state action or under-color-of-law requirements necessary to support constitutional or § 1983 claims, or that he is not seeking review of the state court decision, or that defendant's actions toward him were motivated by any racial or other class-based animus. Therefore, despite the fact that the court gave plaintiff fair notice and an opportunity to clarify the basis for his claims, see Hall v. Bellmon, 935 F.2d 1106, 1110 n. 3 (10th Cir. 1991) (pro se litigants are generally "to be given reasonable opportunity to remedy defects in their pleadings"), it nevertheless appears that plaintiff's complaint still fails to state a claim upon which relief could be granted.
Instead, in plaintiff's response to the court's order to show cause, he clarified that he wants a new trial based on injustices that occurred in the original trial in Kansas state court. Given this explanation, the court remains convinced that, even to the extent that plaintiff's claims might conceivably have some merit (which the court doubts for the reasons explained above), the court would not have jurisdiction to afford plaintiff the relief that he seeks. Under 28 U.S.C. § 1257(a), "[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari." The negative inference of this statute is that "federal review of state court judgments can be obtained only in the United States Supreme Court." Pittsburg County Rural Water Dist. No. 7 v. City of McAlester, 35 F.3d 694, 706 (10th Cir.) (internal quotation omitted), cert. denied, No. 03-1515, 2004 WL 2049341, at *1 (Oct. 4, 2004), and No. 03-1643, 2004 WL 2053249, at *1 (Oct. 4, 2004). Based on this principle, the Rooker-Feldman doctrine has emerged. This doctrine "precludes a party losing in state court from seeking what in substance would be appellate review of a state judgment in a United States district court, based on the losing party's claim that the state judgment itself violates the loser's federal rights." Id. at 706-07 (same). In this case, plaintiff seeks a new trial, which is essentially seeking review of an issue that was actually decided by the state court, as well as damages arising from the state court trial, which are issues that would be inextricably intertwined with the state court proceeding. In short, the types of relief that plaintiff seeks are quintessentially the types that are barred by the Rooker-Feldman doctrine.
This doctrine draws its name from the seminal cases of Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).
In sum, plaintiff failed to timely serve defendant in this case because he did not obtain a summons and consequently failed to serve defendant with a summons along with the copy of the complaint; plaintiff has failed to demonstrate good cause sufficient to warrant a mandatory extension of time to serve defendant; and the court is unwilling to exercise its discretion to grant plaintiff a permissive extension of time to serve defendant because doing so would be futile given the fact that, despite giving plaintiff notice and an opportunity to clarify the basis for his claims, his complaint nonetheless still fails to state a claim upon which relief can be granted and, even to the extent that it does state a claim, the court is without jurisdiction under the Rooker-Feldman doctrine to afford plaintiff the relief that he seeks.
IT IS THEREFORE ORDERED BY THE COURT that this case is dismissed without prejudice pursuant to Fed.R.Civ.P. 4(m).
IT IS SO ORDERED.