Fisher v. Phoenix, City of et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Andre Deshawn Fisher,
Plaintiff,
v.
City of Phoenix, et al.,
Defendants.
No. CV-25-02087-PHX-SMB
ORDER
The Court now considers Defendant City of Phoenix’s (the “City”) Motion to
Dismiss Plaintiff’s First Amended Complaint (“FAC”) (Doc. 23). The Court also considers
the following motions, all related to service of process on Defendants Jordin Steele, Ronnie
Rabel, and Ashton Kosirog (the “Officer Defendants”): Plaintiff’s Motions for Alternative
Service of Process (Docs. 18, 27); the Officer Defendants’ Motion to Quash Service of
Process (Doc. 22); and Plaintiff’s Motion for Extension of Time to Serve the Officer
Defendants (Doc. 26). For the reasons that follow, the Court: grants the City’s Motion to
dismiss; denies Plaintiff’s October 10 and December 1 motions for alternative service of
process; grants the Officer Defendants’ Motion to Quash; and grants Plaintiff’s Motion
for Extension.
I. BACKGROUND
The FAC alleges as follows. On July 7, 2024, Plaintiff Andrew Deshawn Fisher
left $600 worth of marijuana in his parked car. (Doc. 21 at 2 ¶¶ 8, 13.) Sometime after
Plaintiff parked, Phoenix Police Officers Jordin Steele and Ronnie Rabel searched the car
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“[w]ithout probable cause, warrant, or Plaintiff’s consent.” (Id. ¶ 9.) When Plaintiff
returned to his car, the marijuana was missing. (Id. ¶ 13.)
The FAC goes on to allege that neither Officer Steele nor Rabel activated their
body-worn camera “as required by department policy.” (Id. ¶ 11.) Additionally, the City
“failed to ensure officers’ use of body-worn cameras, to document searches, or to supervise
or discipline officers engaging in unlawful vehicle intrusions.” (Id. ¶ 19.) The FAC also
notes that Officer Ashton Kosirog falsely told Plaintiff that surveillance footage depicted
Plaintiff walking away from his car with another person. (Id. ¶ 15.) Plaintiff thus asserts
claims under 42 U.S.C. §§ 1983 and 1985 against the City, the Phoenix Police Department,
and the Officer Defendants.
The Court previously dismissed the Complaint for failure to state a claim. (Doc.
19). The Court gave Plaintiff leave to amend each claim except for two state law claims
which were time-barred under A.R.S. § 12-821.01(A). (Id. at 8.) The FAC remains
materially unchanged aside from the omission of these two state law claims.
The Court first addresses the City’s Motion to Dismiss. It then addresses the
motions related to service of process.
II. MOTION TO DISMISS
As noted, Plaintiff did not materially amend his Complaint. As a result, Plaintiff
fails to cure any of the defects identified in this Court’s previous Order dismissing the
Complaint. (Doc. 19.) Thus, the Court’s analysis in its prior Order applies with equal
force here.
Although leave to amend should be freely given, Fed. R. Civ. P. 15(a)(2), the Court
finds that dismissal with prejudice is appropriate here. Dismissal with prejudice is
appropriate where a litigant fails to “cure deficiencies by amendments previously allowed.”
Foman v. Davis, 371 U.S. 178, 182 (1962). Plaintiff was given leave to amend and did not
make any cognizable attempt to cure the deficiencies identified by the Court in its previous
Order.
Thus, the Court dismisses each claim asserted against the City with prejudice. The
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Court also dismisses each claim asserted against the Phoenix Police Department with
prejudice. The claims asserted against the Phoenix Police Department are factually and
legally identical to the claims asserted against the City.
III. SERVICE MOTIONS
The Court now considers the motions related to service on the Officer Defendants.
A brief chronology is prudent:
- June 16, 2025: Plaintiff files suit and is thus required to serve Defendants within
ninety days. Fed. R. Civ. P. 4(m).
- September 11, 2025: Plaintiff moves for an extension of time to serve the Officer
Defendants. (Doc. 15.)
- September 15, 2025: The Court grants Plaintiff’s Motion for Extension and gives
Plaintiff until October 31, 2025 to serve the Officer Defendants. (Doc. 17.)
- October 10, 2025: Plaintiff files a Motion for Alternative Service (Doc. 18.)
- October 15, 2025: The Court dismisses the claims asserted against the City with
leave to amend. (Doc. 19.)
- October 30, 2025: Plaintiff files Notice of Proof of Service which provides that
Plaintiff served the Officer Defendants by mail at “their official duty location with
the Phoenix Police Department.” (Doc. 20 at 1.)
- November 30, 2025: The Officer Defendants file their Motion to Quash Service
(Doc. 22).
- December 1, 2025: Plaintiff files another Motion for Extension (Doc. 26) and
Motion for Alternative Service (Doc 27).
The Court now considers the Officer Defendants’ Motion to Quash, Plaintiff’s Motions for
Alternative Service and Motion for Extension.1
A. Motion to Quash
The Court begins with the Officer Defendant’s Motion to Quash. “A Rule 12(b)(5)
1 Plaintiff’s October 10 Motion for Alternative Service is materially similar to his
December 1 Motion for Alternative Service. The only meaningful difference is that the
October 10 includes additional information regarding Plaintiff’s attempts to serve the
Officer Defendants.
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motion is the proper vehicle for challenging the ‘insufficiency of service of process.’”
Bovier v. Bridgepoint Educ./Ashford Univ., No. 3:17-CV-01052-GPC-JMA, 2017 WL
4922978, at *1 (S.D. Cal. Oct. 30, 2017) (quoting Fed. R. Civ. P. 12(b)(5)). “Objections
to the validity of service of process must be specific and must point out in what manner the
plaintiff has failed to satisfy the requirements for proper service.” Id. The Officer
Defendants meet this burden.
Plaintiff attempted to serve the Officer Defendants by mailing process to “their
official duty location with the Phoenix Police Department.” (Doc. 20 at 1.) As the Officer
Defendants correctly argue, Plaintiff failed to abide by Federal Rule of Civil Procedure
(“Rule”) 4(e)(2), which provides that an individual may be served by: “delivering a copy
of the summons and of the complaint to the individual personally”; “leaving a copy of each
at the individual's dwelling or usual place of abode with someone of suitable age and
discretion who resides there”; or “delivering a copy of each to an agent authorized by
appointment or by law to receive service of process.” In addition to these methods, Rule
4(e)(1) allows for service to be made in accordance with the “state law for serving a
summons in an action brought in courts of general jurisdiction in the state where the district
court is located or where service is made.” Arizona Rule of Civil Procedure (“Arizona
Rule”) 4.1(d) mirrors Rule 4(e)(2). Plaintiff’s attempted service does not qualify under
any of the foregoing methods of service.
“Once service of process is properly challenged, the party on whose behalf service
is made must bear the burden of establishing its validity.” Bovier, 2017 WL 4922978, at *1
(citation modified). Plaintiff does not contest the Motion to Quash. Indeed, it appears that
Plaintiff recognizes that his attempted service is improper given that he filed a Motion for
Alternative Service after he attempted service by mail on the Officer Defendants. The
Court now considers that Motion.
B. Motion for Alternative Service
Plaintiff, pursuant to Arizona Rule 4.1(k), seeks leave to file service on the Officer
Defendants through various means. Arizona Rule 4.1(k)(1) provides: “If a party shows
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that the means of service provided in Rule 4.1(c) through Rule 4.1(j) are impracticable, the
court may—on motion and without notice to the person to be served—order that service
may be accomplished in another manner.” “Impractical has been defined by the Arizona
courts as extremely difficult or inconvenient.” Stefoglo v. Boylan, No. CV-25-04420-PHX-
DJH, 2026 WL 280906, at *1 (D. Ariz. Feb. 3, 2026) (citation modified).
Plaintiff fails to demonstrate that service of the Officer Defendants in the manner
prescribed under Arizona Rules 4.1(c)–(j) is extremely difficult or inconvenient. To start,
Arizona Rule 4.1(c) provides:
An individual, corporation, or association that is subject to service under
Rule 4.1(d), (h)(1)–(3), (h)(4)(A), or (i) has a duty to avoid unnecessary
expense in serving the summons. To avoid costs, the plaintiff may notify the
defendant that an action has been commenced and request that the defendant
waive service of a summons.”
Plaintiff did not ask the Officer Defendants to waive process and does not argue that doing
so would be extremely difficult or inconvenient. Thus, Plaintiff cannot hold that “that the
means of service provided in Rule 4.1(c)” is impractical. This alone justifies denying
Plaintiff’s Motion for Alternative Service because Arizona Rule 4.1(k)(1) plainly requires
Plaintiff to show “that the means of service provided in Rule 4.1(c) through Rule 4.1(j) are
impracticable.”
Even still, Plaintiff’s remaining arguments are not compelling. In short, Plaintiff
contends that he attempted to serve the Officer Defendants by showing up at various
Phoenix Police buildings and by hiring a process server who made several unsuccessful
attempts to serve the Officer Defendants. (Doc. 27 at 2.) Plaintiff does not outline any
attempt made to serve the Officer Defendants at their homes in accordance with Arizona
Rule 4.1(d)(2) or Rule 4(e)(1)(2). Furthermore, Plaintiff’s own exhibits cast doubt on his
assertion that he hired a process servicer who made multiple unsuccessful attempts to make
service. (Doc. 18 at 2.) Plaintiff attaches a screenshot of emails between himself and the
process servicer; however, those communications do not reveal that the company was
unable to serve the Officer Defendants. (Id. at 4.) Instead, it appears that that process
servicer stopped responding to Plaintiff sometime in June or July of 2025, well before the
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initial and extended service deadline. (Id.)
Accordingly, the Court denies both Plaintiff October 10 and December 1 Motions
for Alternative Service.
C. Motion for Extension
This leaves Plaintiff’s Motion for Extension. The Court recognizes that it “must
extend the time for service for an appropriate period” where a claimant “shows good cause
for the failure” to serve a defendant. NEXA Mortg., LLC v. Diaz, No.
24-CV-00061-BEN-MMP, 2024 WL 2218994, at *1 (S.D. Cal. May 16, 2024) (quoting
Fed. R. Civ. P. 4(m)). “The court may even extend time for service retroactively after the
Rule 4(m) service period has expired.” Id. (citation modified). “The Ninth Circuit has
found it unnecessary to articulate a specific test that a court must apply in exercising its
discretion under Rule 4(m), and has noted only that, under the terms of the rule, the court’s
discretion is broad.” Id. (citation modified). However, “[e]ven absent good cause, courts
have discretion to extend the time for service under Rule 4(m).” Id.
The Court, in its discretion, gives Plaintiff thirty (30) days from the date of this
Order to complete service on the Officer Defendants or request waiver of service. The
Court finds that giving Plaintiff additional time to render service will serve the interests of
justice and otherwise promote resolution of the case on its merits. The Court specifically
recognizes Plaintiff’s pro se status, his attempts to render service thus far, and the potential
confusion caused by his Complaint being dismissed before the October 30, 2025 service
deadline.
IV. CONCLUSION
Accordingly,
IT IS ORDERED granting the City’s Motion to Dismiss (Doc. 23).
IT IS FURTHER ORDERED dismissing each claim asserted against the City and
the Phoenix Police Department with prejudice.
IT IS FURTHER ORDERED granting the City’s Motion to Quash Service (Doc.
22).
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IT IS FURTHER ORDERED denying Plaintiff’s October 10 Motion for
Alternative Service (Doc. 18) and December 1 Motion for Alternative Service (Doc. 27).
IT IS FURTHER ORDERED granting Plaintiff Motion for Extension (Doc. 26).
Plaintiff shall have thirty (30) days from the date of this Order to complete service on the
Officer Defendants.
Dated this 20th day of February, 2026.
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