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Christian v. Oubre

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA
Oct 26, 2018
Case No. CIV-17-1050-G (W.D. Okla. Oct. 26, 2018)

Opinion

Case No. CIV-17-1050-G c/w CIV-18-74

10-26-2018

JAMES CORNELIUS CHRISTIAN, Plaintiff, v. CHAD R. OUBRE et al., Defendants.


OPINION AND ORDER

Plaintiff James Cornelius Christian, a federal prisoner appearing pro se and proceeding in forma pauperis, initiated two actions in this court that were subsequently consolidated: (1) Christian v. Oubre and Shelton, No. CIV-17-1050 (filed October 2, 2017), and (2) Christian v. Shelton, No. CIV-18-74 (filed January 23, 2018). See Order (Doc. No. 19) at 1. On June 15, 2018, the Court dismissed the claims asserted in the October 2017 Complaint for failure to state a claim on which relief may be granted. See Order (Doc. No. 33). For the reasons discussed below, the Court now dismisses without prejudice the claims asserted in the January 2018 Complaint for failure of service.

BACKGROUND

On November 9, 2017, the Court authorized service of the October 2017 Complaint on the two defendants named in that pleading: Chad Oubre and Isabella Shelton. See Order Requiring Serv. (Doc. No. 9) at 1-2. On February 23, 2018, the Court authorized service of the January 2018 Complaint upon the sole named defendant: Ms. Shelton. See Second Order Requiring Serv. (Doc. No. 22) at 1-3. In each instance, the Court expressly warned Plaintiff that, even though the United States Marshals Service ("USMS") had been directed "to attempt to accomplish service" on his behalf, "service [was] ultimately Plaintiff's responsibility" and "[t]he failure to file timely proofs of service as to any Defendant may result in the dismissal of the claims against that Defendant."

In the October 2017 Complaint, Plaintiff initially named Isabella Esmeralda as a defendant but subsequently advised the Court that he was correcting the name to Isabella Shelton. See Pl.'s Suppl. (Doc. No. 8) at 1.

In the January 2018 Complaint, Plaintiff initially named Isabell Shelton as a defendant. In subsequent filings, Plaintiff referred to this defendant as Isabella Shelton. See, e.g., Pro Se Litigant's Request for Issuance of Summons (Doc. No. 24) at 1. The Court has assumed that the slight difference in given names (Isabell vs. Isabella) does not indicate an intent to identify two different people.

Relative to the October 2017 Complaint, Plaintiff served Defendant Oubre but took no action as to Defendant Shelton. As noted, the Court subsequently dismissed all of Plaintiff's claims in the October 2017 Complaint for failure to state a claim on which relief may be granted. See Order of June 15, 2018, at 1-2.

Relative to the January 2018 Complaint, Plaintiff had 21 days from the date of the February 23, 2018 Order (i.e., until March 16, 2018) to properly request the issuance of a summons for Defendant Shelton and 90 days from the date of that Order (i.e., until May 24, 2018) to ensure that a proof of service or waiver of service for Defendant Shelton was filed with the Court. See Second Order Requiring Serv. at 2 (citing Fed. R. Civ. P. 4(c), (d), (i), (l), (m)). On February 28, 2018, Plaintiff requested the issuance of a summons for Defendant Shelton. See Doc. No. 24. In this request, Plaintiff stated that the proper address was "unknown" but listed Defendant Oubre's name and the address for the Bureau of Alcohol, Tobacco, Firearms, and Explosives. See Doc. Nos. 24, 26. A corresponding summons for Defendant Shelton was issued by the Clerk of Court and forwarded to the USMS on March 2, 2018. See Doc. No. 25. On March 9, 2018, the USMS filed a Process Receipt and Return, indicating that the summons was served on Mr. Oubre on March 8, 2018, and stating that "Chad Oubre indicated that he does not know the whereabouts of Isabella Shelton, and will not be able to forward." Doc. No. 26 at 1.

By Order issued May 30, 2018, following expiration of Plaintiff's deadline to serve Defendant Shelton, the Court reiterated to Plaintiff that the USMS had been unable to locate Defendant Shelton using the address Plaintiff provided and that Plaintiff's deadline to file a proof of service or waiver for Defendant Shelton had now expired. See Order (Doc. No. 29) at 2. The Court directed that Plaintiff had until June 20, 2018, to show good cause in writing as to why his claims against Defendant Shelton should not be dismissed without prejudice. See id. at 2-3 (citing Fed. R. Civ. P. 4(m)). The Court expressly warned Plaintiff that failure to show good cause may result in the dismissal of Plaintiff's claims against Defendant Shelton. See id. Subsequently, when the docket indicated that Plaintiff did not receive this Order, the undersigned sua sponte extended Plaintiff's deadline to show cause to July 23, 2018, and provided Plaintiff with an additional copy of the May 30, 2018 Order. See Order of July 2, 2018 (Doc. No. 34) at 1-2; see also Doc. No. 31.

On July 20, 2018, Plaintiff submitted a document titled "Replying to Any Order, Report, and/or Recommendation to CIV-17-1050-R." See Pl.'s Resp. (Doc. No. 36) at 1-3; Pl.'s Resp. Ex. 1 (Doc. No. 36-1) at 1. In this document, Plaintiff reiterates allegations brought in his Complaint but does not allude to his failure to serve Defendant Shelton. Plaintiff offers no evidence of any inquiry as to Defendant Shelton's address or any effort to rectify the failed service attempt. Rather, Plaintiff states only that he is "not a lawyer." Pl.'s Resp. at 2.

ANALYSIS

Rule 4(m) of the Federal Rules of Civil Procedure provides: "If a defendant is not served within 90 days after the complaint is filed, the 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 be made within a specified time." Fed. R. Civ. P. 4(m). Although Plaintiff is a pro se litigant, he is required to comply with the same rules of procedure governing other litigants, including Rule 4. See DiCesare v. Stuart, 12 F.3d 973, 980 (10th Cir. 1993) (stating that pro se plaintiff was "obligated to follow the requirements of Fed. R. Civ. P. 4"); see also Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1113 (10th Cir. 2007) ("It is the plaintiff's responsibility to provide the United States Marshal with the address of the person to be served; the Marshal is not charged with finding a defendant who has moved without providing an accessible forwarding address." (citation omitted)). Thus, Plaintiff's failure to complete proper service upon Defendant Shelton within the prescribed time limit is grounds for dismissal of all claims against that Defendant, absent sufficient justification for this failure. See Fed. R. Civ. P. 4(m).

District courts in this circuit "employ[] a two-step analysis for dismissal pursuant to Rule 4(m)." Womble v. Salt Lake City Corp., 84 F. App'x 18, 20 (10th Cir. 2003) (citing Espinoza v. United States, 52 F.3d 838, 841 (10th Cir. 1995)). First, if the plaintiff shows good cause for his or her failure to properly serve a defendant, the court must extend the deadline for an appropriate period. Id.; Fed. R. Civ. P. 4(m). Despite being provided the opportunity, Plaintiff has offered no explanation for his failure to serve Defendant Shelton or evidence of any effort on his part to determine Defendant Shelton's address. Plaintiff's statement regarding his lack of legal training does not establish good cause for his lack of service that would trigger a mandatory extension. See Mark v. N. Navajo Med. Ctr., 631 F. App'x 514, 516 (10th Cir. 2015); cf. Despain v. Salt Lake Area Metro Gang Unit, 13 F.3d 1436, 1438 (10th Cir. 1994) (explaining that Federal Rule of Civil Procedure 4(m)'s "good cause provision . . . should be read narrowly to protect only those plaintiffs who have been meticulous in their efforts to comply with the Rule" (internal quotation marks omitted)). Accordingly, Plaintiff has not shown good cause for the failure to serve Defendant Shelton.

Second, "[i]f the plaintiff fails to show good cause, the district court must still consider whether a permissive extension of time may be warranted." Espinoza, 52 F.3d at 841. The court should consider several factors in making this determination, including whether "the applicable statute of limitations would bar the refiled action"; whether the plaintiff tried to follow "the complex requirements of multiple service" when serving the United States, its agencies, or employees; and whether there is reason to protect a pro se plaintiff "from consequences of confusion or delay attending the resolution of an in forma pauperis petition." Id. at 842 & n.8 (internal quotation marks omitted).

Defendant Shelton is not "a United States officer or employee," and the Court granted Plaintiff's in forma pauperis application well before it authorized him to serve process on Defendant Shelton. Moreover, Oklahoma's two-year statute of limitations would not bar Plaintiff's claims against Defendant Shelton, which are most reasonably described as being brought pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (holding that a "federal agent acting under color of his authority" may be liable for money damages when he or she violates certain constitutional rights even though there is no federal statute expressly authorizing an award of damages), if the Court dismisses those claims without prejudice under Rule 4(m). See Young v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009) (noting that Oklahoma's two-year statute of limitations period for personal injury actions applies to Bivens claims brought in federal court). A Bivens claim accrues, and the applicable limitations period begins to run, when "an injured party knows of, or in the exercise of reasonable diligence, should have known of or discovered the injury." Id. at 1258 (internal quotation marks omitted). Plaintiff's claims against Defendant Shelton brought in his January 2018 Complaint are based upon Defendant Shelton's allegedly unconstitutional conduct on several occasions during the period of November 2016 through March 2017. See Christian, No. CIV-18-74-R (Compl. at 7-8). Thus, even if the undersigned assumes that Plaintiff knew or should have known that his constitutional rights had been violated on the dates on which the events occurred, the two-year limitations period for Plaintiff to bring his Bivens claims against Defendant Shelton would not bar Plaintiff from refiling his action if the claims are dismissed under Rule 4(m). Cf. Espinoza, 52 F.3d at 842.

Even if the statute of limitations had expired since this lawsuit was filed, Plaintiff likely could rely upon Oklahoma's "savings statute," Okla. Stat. tit. 12, § 100, to file a new action against Defendant Shelton within one year of dismissal under Rule 4(m) because such a dismissal represents a "failure 'otherwise than on the merits' within the meaning of § 100." Harper v. Bearden, No. CIV-14-563-HE, 2015 WL 9590268, at *4 (W.D. Okla. Nov. 17, 2015) (R. & R.) (quoting Ross v. Kelsey Hayes, Inc., 825 P.2d 1273, 1277 (Okla. 1991)), adopted sub nom. Harper v. Okla. Dep't of Corr. Dir., 2015 WL 9581862 (W.D. Okla. Dec. 30, 2015); see Mann v. Center, No. CIV-15-1276-D, 2017 WL 544594, at *2 (W.D. Okla. Feb. 10, 2017).

Thus, all the Espinoza factors weigh in favor of dismissal under Rule 4(m), and the undersigned discerns no other policy considerations that warrant granting Plaintiff a permissive extension in this case. See Fields, 511 F.3d at 1113; Pemberton v. Patton, 673 F. App'x 860, 864 (10th Cir. 2016); Smith v. Glanz, 662 F. App'x 595, 596, 597-98 (10th Cir. 2016).

CONCLUSION

Accordingly, the Court DISMISSES Plaintiff's January 23, 2018 Complaint, without prejudice to refiling, for failure of service under Rule 4(m) of the Federal Rules of Civil Procedure. Because this dismissal is dispositive of all remaining claims, a separate judgment shall issue.

IT IS SO ORDERED this 26th day of October, 2018.

/s/_________

CHARLES B. GOODWIN

United States District Judge


Summaries of

Christian v. Oubre

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA
Oct 26, 2018
Case No. CIV-17-1050-G (W.D. Okla. Oct. 26, 2018)
Case details for

Christian v. Oubre

Case Details

Full title:JAMES CORNELIUS CHRISTIAN, Plaintiff, v. CHAD R. OUBRE et al., Defendants.

Court:UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

Date published: Oct 26, 2018

Citations

Case No. CIV-17-1050-G (W.D. Okla. Oct. 26, 2018)