Randall #166584 v. Nowlan et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Primo L Randall,
Plaintiff,
v.
Unknown Nowlan, et al.,
Defendants.
No. CV-25-04520-PHX-SHD (ASB)
REPORT AND RECOMMENDATION
TO HON. SHARAD H. DESAI, UNITED STATES DISTRICT JUDGE:
Recently, the Court issued an Order to Show Cause as to Plaintiff for Plaintiff’s
failure to prosecute due to failure to return service packets for Defendants Nowlan, Pierre,
Myrtle, and Larranaga. (Doc. 8.) Plaintiff did not respond to the Order, and this Report
and Recommendation follows.
I. BACKGROUND
Plaintiff filed the instant pro se civil rights action on December 5, 2025. (Doc. 1.)
On January 30, 2026, the Court dismissed all claims and defendants except for Count One,
which alleges excessive force under the Eighth Amendment as to Defendants Nowlan,
Pierre, Myrtle, and Larranaga. (Doc. 6.) The Court further ordered Plaintiff to return the
service packets for each defendant within 21 days and to complete service of the summons
and Complaint on Defendants Nowlan, Pierre, Myrtle, and Larranaga, or obtain a waiver
of service of the summons within 90 days from when the Complaint was filed or 60 days
from the date the Order was filed, whichever was later. (Id. at 9-10.) Plaintiff failed to
return the service packets, per the docket in this case. Consequently, the Court issued its
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Order to Show Cause for failure to prosecute on March 3, 2026. (Doc. 8.) Plaintiff filed
no response to that Order to Show Cause.
II. ANALYSIS
A. Applicable Law
In this action, Rule 4 of the Federal Rules of Civil Procedure governs the time limit
for service of a complaint. That Rule 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. But if the plaintiff shows good cause for the
failure, the court must extend the time for service for an appropriate period.
Thus, the question before the Court is whether Plaintiff has shown good cause for the
failure to return the service packets. If good cause is shown, time must be extended. Id.
In the Ninth Circuit, “[a]t a minimum, good cause means excusable neglect.” In re
Sheehan, 253 F.3d 507, 512 (9th Cir. 2001) (brackets in original) (internal quotation marks
and citations omitted). Negligence and ignorance of the Rules is not good cause. See
Townsel v. Contra Costa Cnty., Cal., 820 F.2d 319, 320-21 (9th Cir. 1987). When
determining whether a plaintiff has shown good cause, the Court has broad discretion, and
there is no specific test to apply. In re Sheehan, 253 F.3d at 513. However, the Court can
consider whether a plaintiff has shown: “(a) the party to be served 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. at 512 (quoting Boudette v.
Barnette, 923 F.2d 754, 756 (9th Cir. 1991)). The Court may also consider whether service
was eventually effectuated. Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007). The
Rule 4 provisions should be given a liberal and flexible construction. See Borzeka v.
Heckler, 739 F.2d 444, 447 (9th Cir. 1984). Public policy favors resolution of matters on
their merits. Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998). However,
the Court’s discretion under Rule 4(m) is not “limitless.” Efaw, 473 F.3d at 1041.
Indeed, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, a district
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court may dismiss an action due to a plaintiff’s failure to prosecute or to comply with court
orders. See Link v. Wabash R.R. Co., 370 U.S. 626, 629-30 (1962) (a court’s authority to
dismiss for lack of prosecution is necessary to prevent undue delays in the disposition of
pending cases and to avoid congestion in the calendars of the district courts); Ferdik v.
Bonzelet, 963 F.2d 1258, 1260 (1992) (a district court may dismiss an action for failure to
comply with any order of the court).
B. Analysis
Here, Plaintiff has not responded to the Order to Show Cause. Further, the docket
shows no discernible effort by Plaintiff has been made serve Defendants Nowlan, Pierre,
Myrtle, and Larranaga, or to demonstrate good cause for his failure to serve Defendants
Nowlan, Pierre, Myrtle, and Larranaga.
After carefully considering the record and the applicable case law, the Court cannot
conclude good cause has been shown. There is no indication from the docket that
Defendants Nowlan, Pierre, Myrtle, or Larranaga have actual notice of this action. At this
juncture, the Court has nothing before it that would indicate service is forthcoming. Delay
may result in prejudice to a defendant’s ability to effectively defend against claims made
against them. See Efaw, 473 F.3d at 1041 (finding delay, albeit significantly longer than
the time at bar, could result in prejudice to defendants). Plaintiff has not responded to the
order to show cause to indicate that he will be prejudiced by dismissal. In recommending
dismissal for lack of service, undersigned recognizes Plaintiff’s incarcerated status and that
public policy favors resolution on the merits. However, Plaintiff has failed to make any
effort to show good cause for his failure to return the service packets as ordered, and
furthermore, the time for service under Rule 4(m) has passed. On the record before it,
undersigned will recommend to the District Judge that the Complaint be dismissed without
prejudice for failure to prosecute.
In making its recommendation to dismiss this action for failure to prosecute, the
Court has considered the Ferdik factors. 963 F.2d at 1260-61. While the Court recognizes
public policy favoring disposition of matters on their merits, Plaintiff has failed to comply
with the Court’s Orders, and the Court must efficiently manage its caseload. The Court
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further acknowledges the public’s interest in expeditious resolution of litigation.
Defendants Nowlan, Pierre, Myrtle, and Larranaga have not been served; continued delay
may prejudice them. The Court has considered the availability of less drastic alternatives,
but Plaintiff is not responsive to the Order to Show Cause and is not prosecuting his case.
Thus, undersigned recommends dismissal.
III. RECOMMENDATION
For the foregoing reasons,
IT IS RECOMMENDED that the Court find Plaintiff has failed to show good
cause for failure to prosecute and enter an order dismissing without prejudice the
Complaint.
This recommendation is not an order that is immediately appealable to the Ninth
Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of
Appellate Procedure, 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 written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R.
Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response
to the objections.
Failure to timely file 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 timely file objections to any factual determinations of the
Magistrate Judge will be considered a waiver of a party’s right to appellate review of the
findings of fact in an order of judgment entered pursuant to the Magistrate Judge’s
recommendation. See Fed. R. Civ. P. 72.
Dated this 20th day of March, 2026.
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