Young v. Rios et al

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
GEORGE SOLER YOUNG, )
)
Plaintiff, )
)
v. ) Case No. CIV-15-641-R
)
HECTOR RIOS et al., )
)
Defendants. )
REPORT AND RECOMMENDATION
Plaintiff George Soler Young, a state prisoner appearing pro se and proceeding in
forma pauperis, initially filed his 42 U.S.C. § 1983 Complaint (Doc. No. 1) in March 2015,
naming over twenty defendants. In December 2016, Plaintiff filed his Amended Complaint
(Doc. No. 102), which similarly named numerous Defendants. On November 14, 2017,
District Judge David L. Russell ordered dismissal of certain claims and re-referred this
matter to the undersigned for further proceedings. See Order of Nov. 14, 2017 (Doc. No.
120).
I. Background
On November 17, 2017, the undersigned found that of the nine remaining
Defendants, three—Scottie Tweedy, Larry Jones, and Emosi Time—had not yet been
served in this lawsuit, and ordered that Plaintiff must cause service to be made upon those
three Defendants within 90 days (i.e., no later than February 15, 2018). See Order of Nov.
17, 2017 (Doc. No. 121); Fed. R. Civ. P. 4(m). The undersigned noted that, because
Plaintiff is proceeding in forma pauperis, he is entitled to have service be made by the
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United States Marshals Service (“USMS”) in this matter. See Order of Nov. 17, 2017, at
1-2; Fed. R. Civ. P. 4(c)(3). To facilitate such service, Plaintiff was directed to return three
completed summons-request forms to the Court Clerk. Plaintiff also was advised:
Despite the authorization of the USMS to attempt to accomplish service . . .
, Defendants Tweedy, Jones, and Time must be served within ninety (90)
days from the date of this Order. Unless service is waived, Plaintiff must
ensure that a proof of service is filed for each Defendant on or before the
expiration of this 90-day time period. See Fed. R. Civ. P. 4(c), (d), (l), (m).
The failure to file timely proofs of service as to any Defendant may result in
the dismissal of the claims against that Defendant. See Fed. R. Civ. P. 4(m).
Order of Nov. 17, 2017, at 2.
Plaintiff returned three summons-request forms to the Court Clerk. See Doc. No.
122. On December 18, 2017, the USMS filed process returns for Defendants Jones,
Tweedy, and Time. The return for Defendant Jones reflected that service was
accomplished; Defendant Jones has since filed his Answer to Plaintiff’s pleading. See Doc.
Nos. 127, 133. The returns for Defendants Tweedy and Time, however, were both returned
unexecuted, reflecting that the USMS was unable to complete service upon these
individuals using the addresses that had been provided by Plaintiff. See Doc. Nos. 125
(process return for Defendant Tweedy bearing notation “no longer works @ Lawton CF”),
126 (process return for Defendant Time bearing notation, “No such person works @
location named above.”).
Plaintiff has offered no explanation to the Court nor provided any further
information to the USMS in connection with serving Defendants Tweedy and Time and
did not request additional time for service. Accordingly, on February 23, 2018, the
undersigned ordered Plaintiff to show good cause in writing, on or before March 12, 2018,
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as to why all claims raised against these Defendants should not be dismissed. See Order
of Feb. 23, 2018 (Doc. No. 134) at 2.
II. Discussion
On March 14, 2018, Plaintiff filed his Response to the Order to Show Cause. See
Doc. No. 141. The undersigned addresses the relevant portions herein.
A. Defendant Emosi Time
For the first time, Plaintiff now contends that the Defendant “Emosi Time”
identified in the Amended Complaint is the same individual who was identified as
Defendant “Taime” in the initial Complaint. See Pl.’s Resp. at 1-2. Plaintiff further argues
that he believes this Defendant was served earlier in the proceedings on this lawsuit. See
id.
Defendant Taime previously was served and has appeared through counsel in this
lawsuit. See Doc. Nos. 40, 50. In the November 14, 2017 Order, the Court permitted two
claims against Defendant Taime to proceed. See Order of Nov. 14, 2017, at 2. However,
when Plaintiff included no claims against a Defendant Taime in his subsequent Amended
Complaint, the docket notation for Defendant Taime was updated to state that such
Defendant was terminated.
Accepting Plaintiff’s belated clarification that Taime and Time are the same person,
no further action is required to serve this defendant. The docket should be amended to
delete the notation of “Emosi Time” as a Defendant and to strike the prior procedural
termination of Defendant Taime. Then, in light of the clarification made by Plaintiff,
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Defendant Taime should be permitted to file his answer or responsive pleading to
Plaintiff’s Amended Complaint within 21 days.
B. Defendant Scottie Tweedy
Regarding Defendant Tweedy, Plaintiff states that he “can’t recall” whether this
individual was served during the early stages of this lawsuit and does not have access to
his relevant legal materials. Pl.’s Resp. at 2. Plaintiff further states that “[a]s for
[Defendant Tweedy] not being served recently, it’s beyond my capability to know where
to serve and find him now.” Id. Plaintiff cites his incarcerated status and his lack of means
to hire a private investigator as the reasons that he is unable to perfect service. See id. at
2-3.
There is no indication from the docket that Defendant Tweedy has ever been served
in this lawsuit. “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”). Thus, Plaintiff’s failure to complete proper
service under Defendant Tweedy within the prescribed time limit is grounds for dismissal
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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). As noted, Plaintiff offers no
evidence of any inquiry as to Defendant Tweedy’s address or any effort to rectify the failed
service attempt; he simply argues that because of his incarceration and financial status, he
should not be held responsible for locating Defendant Tweedy.
While Plaintiff is entitled to service assistance from the USMS, it is incumbent upon
him to the supply the information that the agency requires to locate his identified
Defendant. See 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[.]” (citation omitted)). “[T]he Marshals Service is not
responsible for lack of service where a plaintiff does not provide correct information
required for service.” Pemberton v. Patton, 673 F. App’x 860, 864 (10th Cir. 2016).
Plaintiff’s mere mention of his status does not give the Court “a reason that would establish
good cause” triggering a mandatory extension of his service deadline. 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 the current Rule 4(m)’s
“good cause provision . . . should be read narrowly to protect only those plaintiffs who
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have been meticulous in their efforts to comply with the Rule” (internal quotation marks
omitted)). Plaintiff has not shown good cause for the failure to serve Defendant Tweedy.
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 Tweedy
is not “a United States officer or employee,” Fed. R. Civ. P. 4(i)(3), and Plaintiff’s in forma
pauperis application was granted well before Plaintiff was authorized to serve process on
the Defendants named in his Amended Complaint. See Doc. No. 4; Order of Nov. 17,
2017, at 1-2. Thus, the only Espinoza factor applicable here is whether Oklahoma’s two-
year statute of limitations would bar Plaintiff’s § 1983 claims against Defendant Tweedy
if the Court dismisses those claims without prejudice under Rule 4(m). See Kripp v. Luton,
466 F.3d 1171, 1174 (10th Cir. 2006) (noting that Oklahoma’s “two-year statute of
limitations period for ‘an action for injury to the rights of another’” applies to § 1983 claims
brought in federal court (quoting Okla. Stat. tit. 12, § 95(A)(3))).
A § 1983 claim accrues, and the applicable limitations period begins to run, “when
the plaintiff knows or should know that his or her constitutional rights have been violated.”
Smith v. City of Enid ex rel. Enid City Comm’n, 149 F.3d 1151, 1154 (10th Cir. 1998)
(internal quotation marks omitted). Plaintiff’s extant claims against Defendant Tweedy are
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based upon Defendant Tweedy’s allegedly unconstitutional conduct during and
immediately after an assault by various correctional officers on October 25, 2013. See Am.
Compl. at 11, 13; Order of Nov. 14, 2017, at 2, 6-8, 9-10. Based upon Plaintiff’s own
pleadings, the undersigned assumes that Plaintiff knew or should have known about the
alleged constitutional violations associated with the assault on or around October 25, 2013.
Thus, the two-year limitations period for Plaintiff to bring his § 1983 claims against
Defendant Tweedy has apparently expired since this lawsuit was filed. That said, the
expired statute of limitations would not necessarily “bar the refiled action,” Espinoza, 52
F.3d at 842 (internal quotation marks omitted), if the claims are dismissed under Rule 4(m).
Plaintiff likely could rely upon Oklahoma’s “savings statute,” Okla. Stat. tit. 12, § 100, to
file a new action against Defendant Tweedy 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). Accordingly, this factor weighs in favor of dismissal
under Rule 4(m). See id.
The undersigned discerns no other policy considerations that warrant granting
Plaintiff a permissive extension in this case. Accordingly, Plaintiff’s claims against
Defendant Tweedy should be dismissed without prejudice pursuant to Federal Rule of Civil
Procedure 4(m). See Fields, 511 F.3d at 1113; Pemberton, 673 F. App’x at 864; Smith v.
Glanz, 662 F. App’x 595, 596, 597-98 (10th Cir. 2016).
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RECOMMENDATION
Based upon the foregoing, the undersigned recommends that the docket be amended
to delete the notation of “Emosi Time” as a Defendant and to strike the prior procedural
termination of Defendant Taime. Defendant Taime then should be permitted to file his
answer or responsive pleading to Plaintiff’s Amended Complaint within 21 days. The
undersigned further recommends that all claims against Defendant Scottie Tweedy be
dismissed without prejudice under Rule 4(m) of the Federal Rules of Civil Procedure.
NOTICE OF RIGHT TO OBJECT
The parties are advised of their right to file an objection to this Report and
Recommendation with the Clerk of this Court by May 2, 2018, in accordance with 28
U.S.C. § 636 and Federal Rule of Civil Procedure 72. Plaintiff is further advised that failure
to timely object to this Report and Recommendation waives the right to appellate review
of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d
656, 659 (10th Cir. 1991).
This Report and Recommendation does not dispose of all issues referred to the
undersigned Magistrate Judge in the present case.
ENTERED this 11th day of April, 2018.
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