Owens v. Zade et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 22-cv-00566-NYW-KAS
NATHANAEL EUGENE OWENS,
Plaintiff,
v.
MISTY ZADE, Health Services Administrator, Fremont Correctional Facility,
Defendant.
_____________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KATHRYN A. STARNELLA
This matter is before the Court on Plaintiff’s Motion to Reinstate Defendant
Rogers Under Rule 54(b) and Rule 60(b)(1) of Fed. R. Civ. P. [#112]1 (the “Motion”).
Defendant filed a “Notice of Non-Objection to Plaintiff’s Motion to Reinstate Ms. Rogers
Under Rule Fed. R. Civ. P. 54(b) and 60(b)(1) (ECF No. 112) But Objecting to Plaintiff’s
Attempt to Obtain Ms. Rogers’ Address from Defendant Zade” [#114] (the “Notice”).2 No
Reply was filed.
1 “[#112]” is an example of the convention the Court uses to identify the docket number assigned
to a specific paper by the Court’s case management and electronic case filing system (CM/ECF).
This convention is used throughout this Recommendation.
2 The issue of Plaintiff’s attempt to obtain Ms. Rogers’ address from Defendant through a
discovery request is not before the Court in this Motion [#112]. However, the Court notes that
Plaintiff’s Third Set of Admissions, Interrogatories and Requests for Production [#114-1], in which
this request was made, appears to have been untimely, as it was served on November 15, 2024,
see [#114-1] at 1, and the deadline for issuing discovery requests was October 15, 2024. Minutes
[#107] at 1.
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I. Background
Plaintiff filed this lawsuit on March 7, 2022. See Compl. [#1]. The operative Third
Amended Complaint [#12] was filed on May 20, 2022. The Waiver of Service of Summons
[#21] returned by the Colorado Department of Corrections (“CDOC”) did not waive and
accept service as to now-former Defendant Melissa Rogers (“Rogers”) because she “is
not a DOC employee but provides contract clinical services.”
On July 10, 2023, the Court issued an Order to Show Cause [#64], addressing the
fact that Ms. Rogers had not been served with a summons and the operative complaint
in this action and, therefore, was not a proper party. The Court ordered Plaintiff to show
cause why it should not recommend that the case against Ms. Rogers be dismissed
pursuant to Fed. R. Civ. P. 4(m) and 41(b). Order to Show Cause [#64] at 3. Plaintiff was
ordered to file proof of service on Ms. Rogers or respond in writing to the Order to Show
Cause on or before August 10, 2023. Id. Plaintiff was warned that failure to serve Ms.
Rogers, to respond and show good cause for Plaintiff’s failure to properly serve this
person, or to provide a current address to allow the United States Marshal to effect service
would result in this Court issuing a recommendation to dismiss Plaintiff’s action as to Ms.
Rogers. Id.
After the Order to Show Cause [#64] issued, Plaintiff filed an Objection [#74] to the
Court’s Order [#64] denying Plaintiff’s request that the Court itself obtain addresses to
serve Ms. Rogers. The District Judge overruled that Objection [#74]. Minute Order [#75].
In addition, the Court held a hearing on September 5, 2023, which addressed, in relevant
part, the Order to Show Cause [#64] and service on Ms. Rogers. Minutes [#86]. After the
Court’s 	discussion 	with 	the 	parties, 	the 	Court 	stated 	that 	it 	would 	issue 	a
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Recommendation [#87] that Ms. Rogers be dismissed under Fed. R. Civ. P. 4(m) and
41(b). Id. That Recommendation [#87] issued on September 8, 2023.
The 	District 	Judge 	found 	that 	Plaintiff 	had 	“largely 	waived 	review” 	of 	the
Recommendation [#87] by failing to respond to the Order to Show Cause [#64] but that,
“[t]o the extent Plaintiff has preserved any challenge to the Recommendation” by filing an
Objection [#88], the District Judge rejected Plaintiff’s argument under Fed. R. Civ. P.
4(c)(3), in short because it is not the responsibility of the United States Marshal “to track
down viable addresses for the defendants; that responsibility is the plaintiff’s.” Minute
Order [#92] at 4-5. Thus, Ms. Rogers was dismissed from this lawsuit on January 22,
2024. Id. at 7.
In the present Motion [#112], Plaintiff asks the Court to reinstate Ms. Rogers as a
Defendant in this action because, he avers, his inability to obtain her address to allow
service of process on her is not his fault.
II. Analysis
Plaintiff asserts the present Motion [#112] under Fed. R. Civ. P. 54(b) and 60(b)(1).
In relevant part, Fed. R. Civ. P. 54(b) provides: “[A]ny order or other decision, however
designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer
than all the parties does not end the action as to any of the claims or parties and may be
revised at any time before the entry of a judgment adjudicating all the claims and all the
parties’ rights and liabilities.” Pursuant to Fed. R. Civ. P. 60(b)(1): “On motion and just
terms, the court may relieve a party or its legal representative from a final judgment, order,
or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable
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neglect[.]” Thus, in short, Plaintiff’s Motion [#112] is a motion seeking reconsideration of
a prior ruling in this lawsuit.
“[C]ourts generally remain free to reconsider their earlier interlocutory orders.”
Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1251 (10th Cir. 2011) (citations omitted). A court
may choose to review a motion to reconsider an interlocutory order “de novo and
essentially reanalyze the earlier motion from scratch, it can review the ruling de novo but
limit its review, it can require parties to establish one of the law-of-the-case grounds, or it
can refuse to entertain motions to reconsider altogether.” United States v. Loera, 182 F.
Supp. 3d 1173, 1206 (D.N.M. 2016).
Despite this flexible standard, a motion to reconsider a prior order “is an extreme
remedy to be granted in rare circumstances[.]” Brumark Corp. v. Samson Res. Corp., 57
F.3d 941, 944 (10th Cir. 1995). Generally, a motion to reconsider is granted when one of
three grounds are met: “(1) an intervening change in the controlling law; (2) new evidence
previously unavailable; [or] (3) the need to correct clear error or prevent manifest
injustice.” Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (citing
Brumark, 57 F.3d at 948).
“[A]s a practical matter, a party seeking reconsideration must set forth facts or law
of a strongly convincing nature[.]” Wiltberger v. Lee-Ward Partners, LLC, No. 16-cv-
00307-MSK-NYW, 2017 WL 4118446, at *1 (D. Colo. Sept. 18, 2017). The party “faces
an easier task when he or she files a targeted, narrow-in-scope motion asking the Court
to reconsider a small, discrete portion of its prior ruling than when he or she files a broad
motion to reconsider that rehashes the same arguments from the first motion, and
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essentially asks the Court to grant the movant a mulligan on its earlier failure to present
persuasive argument and evidence.” Loera, 182 F. Supp. 3d at 1207.
Plaintiff appears to base his Motion [#112] on the third ground for reconsideration,
i.e., the need to correct clear error or prevent manifest injustice. However, Plaintiff’s
arguments here are the same ones already rejected by the Court multiple times—by the
previous Magistrate Judge, the undersigned, and the District Judge—regarding who is
responsible for finding a service address for Ms. Rogers. See generally Order to Show
Cause [#64]; Minute Order [#75]; Recommendation [#87]; Minute Order [#92] at 4-5. The
Court is cognizant of the challenges pro se plaintiffs face in obtaining addresses for
service on defendants who do not work for the corrections system in which the plaintiff is
incarcerated. However, as Plaintiff has repeatedly been told, this does not change the
fact that it is his responsibility to do so. Neither the Court nor the United States Marshal
is obligated to do so on Plaintiff’s behalf.3
Plaintiff’s citations to various legal authority do not alter this conclusion. For
example, pursuant to 28 U.S.C. § 1915(a)(4), “[i]n no event shall a prisoner be prohibited
from bringing a civil action . . . for the reason that the prisoner has no assets and no
means by which to pay the initial partial filing fee.” (Emphasis added). This provision does
not concern an incarcerated plaintiff’s inability to find and serve the defendants in a
lawsuit, but rather only concerns a plaintiff’s ability to file a lawsuit notwithstanding the
plaintiff’s indigent status. Further, as Plaintiff has been repeatedly told, while Fed. R. Civ.
3 If Plaintiff had, even at this late date, provided “new evidence previously unavailable,” see
Servants of Paraclete, 204 F.3d at 1012, in the form of a service address for Ms. Rogers, the
Court’s analysis would need to focus on other issues, such as whether Plaintiff had been diligent
in trying to obtain the address and whether his claims against Ms. Rogers were barred by the
statute of limitations. However, he has not provided such an address in the present Motion [#112].
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P. 4(c)(3) requires the United States Marshal to effect service on defendants where the
plaintiff 	proceeds 	in 	forma 	pauperis, 	nothing 	in 	the 	rule 	requires 	the 	Marshal 	to
independently locate defendants for the plaintiff. Instead, Fed. R. Civ. P. 4(c)(3) only
requires the Marshal to effect service when the plaintiff has provided the Marshal with the
addresses at which to do so.
III. Conclusion
Based on the foregoing,
IT IS HEREBY RECOMMENDED that the Motion [#112] be DENIED.
IT IS FURTHER ORDERED that any party may file objections within 14 days of
service of this Recommendation. In relevant part, Fed. R. Civ. P. 72(b)(2) provides that,
“within 14 days after being served with a copy of the recommended disposition, a party
may 	serve 	and 	file 	specific 	written 	objections 	to 	the 	proposed 	findings 	and
recommendations. A party may respond to another party’s objections within 14 days after
being served with a copy.” “[A] party’s objections to the magistrate judge’s report and
recommendation must be both timely and specific to preserve an issue for de novo review
by the district court or for appellate review.” United States v. 2121 E. 30th St., 73 F.3d
1057, 1060 (10th Cir. 1996). The objection must be “sufficiently specific to focus the
district court’s attention on the factual and legal issues that are truly in dispute.” Id. “[A]
party who fails to make a timely objection to the magistrate judge's findings and
recommendations waives appellate review of both factual and legal questions.” Morales-
Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005).
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Dated: April 30, 2025 	BY THE COURT:
Kathryn A. Starnella
United States Magistrate Judge
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