Jacobsen #353588 v. NaphCare et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Craig Leslie Jacobsen, Jr.,
Plaintiff,
v.
NaphCare, et al.,
Respondents.
No. CV-24-01393-PHX-SHD (JZB)
REPORT AND RECOMMENDATION
TO THE HONORABLE SHARAD H. DESAI, UNITED STATES DISTRICT
JUDGE:
This matter is before the Court upon its own review. Plaintiff has failed to timely
file a Notice of Substitution for Defendants Jane Doe Psych Techs 1 and 2 and failed to
timely serve those Defendants. Additionally, Plaintiff has failed to show cause why his
claims against Defendants Jane Doe Psych Techs 1 and 2 should not be dismissed for
failure to substitute pursuant to this Court’s June 22, 2026 Order. (Doc. 199 at 6–7.) Given
that Plaintiff has failed to comply with the Court’s order and that Defendants Jane Doe
Psych Techs 1 and 2 have yet to be substituted and served since the District Court permitted
Plaintiff’s claims against them to proceed 189-days ago, see (doc. 121), the Court
recommends that Defendants Jane Doe Psych Techs 1 and 2 be dismissed without
prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.1
//
1 This Court was referred “for all pretrial proceedings as authorized under 28 U.S.C.
§ 636(b)(1).” (Doc. 17 at 23.)
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I. BACKGROUND.
On June 11, 2024, Plaintiff, who is currently confined in the Arizona State Prison
Complex–Meadows, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983.
(Doc. 1.) On October 7, 2024, the District Court screened Plaintiff’s Complaint and
dismissed all Defendants except for Defendant DeFeo. (Doc. 17.) On November 1, 2024,
Plaintiff filed an Amended Complaint. (Doc. 23.) Thereafter, on March 18 and April 15,
2025, respectively, Plaintiff filed a Second Amended Complaint and Motion to Amend.
(Docs. 63, 69.)
On August 29, 2025, this Court recommended that the Second Amended Complaint
be granted. (Doc. 90.) On January 9, 2026, the District Court adopted the recommendation,
permitting Plaintiff’s claims against the following Defendants to proceed: DeFeo, CO
Santoya, CO King (formerly Urquhart), John Doe Sergeant One, John Doe Corrections
Officer III, Jane Doe Nurse One, CO Layton, CO Buttle, CO Levine, Nurse Practitioner
Conejos, Deal, and Jane Doe “psych techs” 1 and 2. (Doc. 121.)
Since that date, Plaintiff has sought to serve the identified Defendants and uncover
the identities for the unsubstituted Defendants. This has included multiple motions to
identify or serve. See (docs. 136, 140, 142, 154, 159–69, 182.) Most recently, the Court
granted one of Plaintiff’s motions to serve—specifically Plaintiff’s Motion to Produce
Prison Identification (doc. 154)—with modifications. See (doc. 179.) Namely, the Court
ordered the Clerk of Court to prepare two subpoenas on Plaintiff’s behalf to obtain
documents reflecting the actual names and addresses of Defendants John Doe Sergeant
One, John Doe Corrections Officer III, Jane Doe Nurse One, Jane Doe “psych tech” 1, and
Jane Doe “psych tech” 2. (Id.)
On June 3, 2026, Non-Party NaphCare filed a Response to the Subpoena. (Doc.
183.) On June 11, 2026, Non-Party ADCRR filed their Response to the Subpoena. (Doc.
195.) In both Responses, the Non-Parties note that they are unable to ascertain a specific
individuals for substitution, but provide a list of names of who Defendants John Doe
Sergeant One, John Doe Corrections Officer III, and Jane Doe Nurse One could be. See
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(docs. 183, 195.) Regarding Defendants Jane Doe “psych tech” 1 and 2, NaphCare notes
that it “cannot identify either of these persons because NaphCare does not have ADCRR
custody records identifying the assailant.” (Doc. 183 at 2.) Specifically Non-Party
NaphCare notes that “[w]ithout the full name of the assailant, it is impossible to cross-
reference with the medical records [because a]ssailant ‘Ortiz’ does not appear in any
medical records related to Plaintiff.” (Id.)
On June 22, 2026, this Court issued an Order requiring Non-Parties NaphCare and
ADCRR to provide Defendants’ counsel with photographs of individuals that could
potentially be Defendants John Doe Sergeant One, John Doe Corrections Officer III, and
Jane Doe Nurse One. (Doc. 199.) In that Order, the Court also set a July 10, 2026, deadline
for Plaintiff to provide sufficient information to identify Jane Doe “psych tech” 1 and 2 or
otherwise show cause why his claims against them both should not be dismissed for failure
to substitute. (Id. at 6–7.)
To date, Plaintiff has not provided sufficient information nor shown cause why his
claims against Defendants Jane Doe Psych Techs 1 and 2. The Court specifically notes the
following as they relate to this Report and Recommendation: (1) since Plaintiff filed his
initial Complaint on June 11, 2024, 766 days have passed; (2) since the District Court
permitted Plaintiff’s Amended Complaint to proceed, 189 days have passed without
substitution of Defendants Jane Doe Psych Techs 1 and 2; (3) since the Amended
Complaint was permitted to proceed in part, all other Defendants have either been served,
identified and substituted, or will be identified pursuant to the procedures set in place by
this Court in (doc. 199). To date, Defendants Jane Doe Psych Techs 1 and 2 remain
unsubstituted, unserved, and consequently—because it is unlikely that attempts to ascertain
their identities will be fruitful in the near future—it appears that this case will be
indefinitely delayed if these two unsubstituted Defendants are permitted to remain in this
action.
II. LEGAL STANDARD.
Rule 16.2(b)(2)(B) of the Local Rules of Civil Procedure, which governs prisoner
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civil rights suits, provides that service shall be completed by the maximum date to effect
service under Rule 4(m), “or sixty (60) days from filing of the service order, whichever is
later.” The applicable version of Rule 4(m) of the Federal Rules of Civil Procedure requires
that:
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. But if the plaintiff shows good cause for the
failure, the court must extend the time for service for an appropriate period.
Fed. R. Civ. P. 4(m).
Good cause to avoid dismissal may be demonstrated by establishing, at
minimum, excusable neglect. See Boudette v. Barnette, 923 F.2d 754, 756
(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:
“(a) the party to be served personally received actual notice of the lawsuit;
(b) the defendant would suffer no prejudice; and (c) plaintiff would be
severely prejudiced if his complaint were dismissed.” Id.
Lemoge v. United States, 587 F.3d 1188, 1198 n. 3 (9th Cir. 2009).
“[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely
on the U.S. Marshal for service of the summons and complaint.” Puett v. Blandford, 912
F.2d 270, 275 (9th Cir. 1990). “So long as the [plaintiff] has furnished the information
necessary to identify the defendant, the marshal’s failure to effect service is automatically
good cause within the meaning of Rule 4[(m)].” Walker v. Sumner, 14 F.3d 1415, 1422
(9th Cir. 1994), overruled on other grounds by Sandin v. Conner, 515 U.S. 472 (1995).
However, it remains Plaintiff’s responsibility to provide the United States Marshal
with accurate and sufficient information to effect service. See Walker, 14 F.3d at 1422. The
Court is not required to act as an investigative body in ascertaining a correct address for
Defendant. Id.; DeRoche v. Funkhouser, No. CV 06-1428-PHX-MHM (MEA), 2008 WL
4277659, at *1 (D. Ariz. Sept. 16, 2008) (“neither the Marshal Service nor the Court may
engage in investigatory efforts on behalf of the parties to a lawsuit as this would improperly
place the Court in the role of an advocate”); Pliler v. Ford, 542 U.S. 225, 231 (2004)
(“[F]ederal district judges have no obligation to act as counsel or paralegal to pro se
litigants.”).
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Plaintiff has a general duty to prosecute this action. See Fidelity Philadelphia Trust
Co. v. Pioche Mines Consolidated, Inc., 587 F.2d 27, 29 (9th Cir. 1978). Rule 41(b) of the
Federal Rules of Civil Procedure provides that “[i]f the plaintiff fails to comply with these
rules or any order of court, a defendant may move to dismiss the action or any claim against
it.” Fed. R. Civ. P. 41(b). In Link v. Wabash Railroad Co., 370 U.S. 626, 629–31 (1962),
the Supreme Court recognized that a federal district court has the inherent power to dismiss
a case sua sponte for failure to prosecute. Moreover, in appropriate circumstances, the
Court may dismiss a complaint for failure to prosecute even without notice or hearing. See
id. at 633.
In determining whether Plaintiff’s failure to follow court orders warrants dismissal
of the case, the Court must weigh the following five factors: “(1) the public’s interest in
expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk
of prejudice to the defendants; (4) the public policy favoring disposition of cases on their
merits; and (5) the availability of less drastic sanctions.” Carey v. King, 856 F.2d 1439,
1440 (9th Cir. 1988) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)).
“The first two of these factors favor the imposition of sanctions in most cases, while the
fourth factor cuts against a default or dismissal sanction. Thus the key factors are prejudice
and availability of lesser sanctions.” Wanderer v. Johnson, 910 F.2d 652, 656 (9th Cir.
1990).
III. DISCUSSION.
To date, the docket does not reflect that Plaintiff has filed a Notice to Substitute
Defendants Jane Doe Psych Techs 1 and 2. Nor does the docket reflect that these
unsubstituted Defendants have been served. Since the District Court permitted Plaintiff’s
Third Amended Complaint to proceed on January 9, 2026, 189 days have passed. See (doc.
121.) Additionally, Plaintiff has failed to timely respond to this Court’s order to show
cause. See (doc. 199.) At this juncture, all other Defendants have either: (1) answered the
complaint; (2) been served; or (3) will likely be substituted and served in the near future.
See (doc. 199.) Allowing Defendants Jane Doe Psych Techs 1 and 2 to remain
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unsubstituted and unserved indefinitely will result in a lengthy delay of this litigation,
which is not in the best interest of any party.
Turning to the Carey factors, the Court finds the first, second, and third factors favor
dismissal of Defendants Jane Doe Psych Techs 1 and 2. Regarding the first factor, due to
Plaintiff’s failure to file a notice of substitutions as required, this cannot timely proceed
against Defendants Jane Doe Psych Techs 1 and 2, which runs counter to the public’s
interest in expeditious resolution of litigation. Regarding the second factor, the Court notes
that indefinitely retaining Defendants Jane Doe Psych Techs 1 and 2 without a notice of
substitution or service would certainly grind this litigation to a standstill. Regarding the
third factor, the Court finds prejudice towards the other Defendants were this case delayed
any further. The Fourth Carey factor, as always, weighs against dismissal of Defendants
Jane Doe Psych Techs 1 and 2.
The fifth factor requires the Court to consider whether a less drastic alternative is
available. Rule 41(b) provides that a dismissal for failure to prosecute operates as an
adjudication upon the merits “[u]nless the dismissal order states otherwise.” Fed. R. Civ.
P. 41(b). Here, the Court finds that a dismissal with prejudice would be unnecessarily
harsh, and instead recommends dismissal of Defendants Jane Doe Psych Techs 1 and 2
without prejudice. Considering that dismissal without prejudice—as opposed to dismissal
with prejudice—would permit Plaintiff to bring a future suit against Defendants Jane Doe
Psych Techs 1 and 2, the Court finds it the least drastic measure available.
Accordingly,
IT IS RECOMMENDED that Defendants Jane Doe Psych Tech 1 and Jane Doe
Psych Tech 2 be DISMISSED WITHOUT PREJUDICE for failure to comply with court
orders pursuant to Fed. R. Civ. P. 41(b).
This recommendation is not an order that is immediately appealable to the Ninth
Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should
not be filed until entry of the District Court’s judgment. The Parties shall have 14 days
from the date of service of a copy of this recommendation within which to file specific
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written objections with the Court. See 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 6,
72. Thereafter, the Parties have 14 days within which to file a response to the objections.
Failure to file timely objections to the Magistrate Judge’s Report and
Recommendation may result in the acceptance of the Report and Recommendation by the
District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations 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 Magistrate Judge’s
recommendation. See Fed. R. Civ. P. 72.
Dated this 17th day of July, 2026.
Honorable John Z. Boyle
United States Magistrate Judge
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