Campbell #043669 v. Unknown Parties et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Ricky Lee Campbell,
Plaintiff,
v.
Unknown Parties, et al.,
Defendants.
No. CV-24-01797-PHX-JAT (JZB)
REPORT AND RECOMMENDATION
TO THE HONORABLE JAMES A. TEILBORG, UNITED STATES DISTRICT
JUDGE:
This matter is before the Court upon its own review. Plaintiff has failed to timely
serve Defendant Andersen and has failed to show cause why his claims against Defendant
Andersen should not be dismissed for failure to serve. Accordingly, the Court
recommends Defendant Andersen be dismissed without prejudice pursuant to Rule 4(m)
of the Federal Rules of Civil Procedure.1
I. Background.
On July 22, 2024, pro se Plaintiff Campbell, who is confined in the Arizona State
Prison Complex (ASPC)-Tucson and is proceeding in forma pauperis, filed a prisoner civil
rights Complaint pursuant to 42 U.S.C. § 1983. (Doc. 1.) In an October 8, 2024, Order, the
Court determined that Plaintiff stated an Eighth Amendment threat-to-safety claim against
Defendant Unknown Officer #1 and an Eighth Amendment medical care claim against
1 This Court was referred “for all pretrial proceedings as authorized under 28 U.S.C.
§ 636(b)(1).” (Doc. 27 at 7.)
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Defendants Unknown Nurses #1 and #2. (Doc. 9.) The Court gave Plaintiff 120 days to
discover the actual name of one or more of the Unknown Defendants, through subpoena or
otherwise, and to substitute at least one of the Defendants’ actual names by filing a “notice
of substitution.” (Id.) The Court included three subpoenas in blank with the Order. (Id.)
On October 23, 2024, Plaintiff returned to the Clerk of Court a completed subpoena
directed to Ryan Thornell. (Doc. 11.) On November 6, 2024, the United States Marshal’s
Service served the subpoena on Thornell. (Doc. 12.) On December 17, 2024, Plaintiff
returned to the Clerk of Court another subpoena directed to Ryan Thornell, (doc. 14), which
the Clerk of Court did not forward to the United States Marshal’s Service, although the
subpoena included a list of documents sought by Plaintiff that he had not requested in the
served subpoena. Plaintiff never filed a motion to enforce the served subpoena or a notice
of substitution, and Thornell never filed a motion to quash.
In a February 26, 2025, Order, the Court set forth the above procedural history and
ordered Plaintiff to show cause within 30 days why this case should not be dismissed for
failure to prosecute. (Doc. 16.) On March 19, 2025, Plaintiff filed a Response to the Order
to Show Cause. (Doc. 17.)
In an April 2, 2025, Order, the Court determined that the December 17, 2024,
subpoena should have been served on Ryan Thornell and concluded that this case should
not be dismissed for failure to prosecute at that time. (Doc. 18.) The Court directed the
Clerk of Court to forward Plaintiff’s December 17, 2024, subpoena and a copy of the Order
to the United States Marshal’s Service for service on Ryan Thornell. (Id.) The Court
directed Thornell, within 30 days of service of the subpoena, to either produce information
in response to the subpoena and file a notice to the Court stating how and when he produced
information in response to the subpoena or file a motion to quash the subpoena. (Id.)
Subsequently, the Court granted Thornell’s Motion for Extension of Time to
respond to the December 17, 2024, subpoena, (doc. 20), and Thornell filed a Notice
indicating that the Parties had agreed to extend the deadline for Thornell to respond to the
subpoena to June 30, 2025. (Doc. 22.) On June 24, 2025, Plaintiff filed a Notice, (doc. 24),
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and on June 25, 2025, Thornell filed a Notice of Service of Records Responsive to
Plaintiff’s December 17, 2024, Subpoena.2 (Doc. 23.)
In an August 11, 2025, Order, the Court gave Plaintiff 30 days to file a notice of
substitution identifying at least one of the Unknown Defendants. (Doc. 25.) On August 20,
2025, Plaintiff filed a Notice of Substitution. (Doc. 26.) In the Notice of Substitution,
Plaintiff states that Vargas, a mental health provider, was “with [Plaintiff] before and after
on a weekly [basis]” when Plaintiff was in APSC-Eyman SMU I. (Id. at 1.) Plaintiff also
states that Psych Associate Anderson was “with” Plaintiff in SMU I and after Plaintiff was
moved to Rynning Unit. (Id.)
On August 28, 2025, the Court issued an Order directing the Clerk of Court to
“substitute Vargas for Defendant Unknown Nurse #1 and substitute Andersen for
Defendant Unknown Nurse #2 and will require Defendants Vargas and Andersen to answer
the Eighth Amendment medical care claim.” (Doc. 27 at 3.) The Court required that
Plaintiff complete and return service packets for both Defendants within 21 days of the
Order. (Id. at 5.) The Order further warned that “[i]f Plaintiff does not either obtain a waiver
of service of the summons or complete service of the Summons and Complaint on a
Defendant within 90 days of the filing of the Complaint or within 60 days of the filing of
this Order, whichever is later, the action may be dismissed as to each Defendant not
served.” (Id.) On September 10, 2025, service packets for Unknown Vargas and Unknown
Anderson were forwarded to the U.S. Marshals Service.
On October 17, 2025, service was purportedly executed on Unknown Anderson.
(Doc. 28.) However, in a “Notice Re Insufficiency of Service Via Limited Special
Appearance,” Defendants’ counsel notes that Unknown Anderson has not yet been
identified and that NaphCare, Inc. “is the vendor providing health services at the State-run
prisons and for which this individual Defendant would have arguably worked, as she
indicates she is a ‘Fac. Health Admin’ at one of the ADCRR prison complexes.” (Doc. 30
at 2.)
2 While filed after Plaintiff’s Notice, Thornell’s Notice of Service of Records is listed
as doc. 24, not doc. 23. Compare (doc. 24) with (doc. 23).
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On October 22, 2025, service was returned unexecuted upon Unknown Vargas.
(Doc. 29.) The reason for service returning unexecuted was that “[s]ubject ‘Vargas’ is no
longer employed by AZDOC and no other info provided to locate.” (Id. at 2.)
On November 18, 2025, Plaintiff filed a Notice which provided minimal additional
details about Unknown Vargas and Unknown Anderson. (Doc. 32.)
On December 11, 2025, this Court issued a Report and Recommendation
recommending that Defendant Unknown Officer #1 be dismissed without prejudice for
failure to serve. (Doc. 33.) The Report and Recommendation was subsequently adopted by
the District Court on January 26, 2026. (Doc. 38.)
On February 6, 2026, the Court ordered counsel Sarah Barnes to provide the current
working addresses of Defendants Andersen and Vargas, or if no longer employed, their last
known home addresses, ex parte and under seal. See (doc. 39.) On February 17, 2026,
counsel Sarah Barnes filed a notice of appearance on behalf of Defendant Vargas. (Doc.
40.) On February 18, 2026, service was executed upon Defendant Vargas. (Doc. 42.) On
March 6, 2026, Defendant Vargas filed his answer to Plaintiff’s Complaint. (Doc. 44.)
Regarding Defendant Andersen, counsel Barnes notified the Court that she was
“unaware of any nurses or other medical staff related to Plaintiff’s claims with the name
‘Anderson’ or ‘Andersen.’” (Doc. 41 at 2.)
On March 9, 2026, this Court issued an Order to Show Cause for failure to serve
Defendant Andersen. (Doc. 45.) In the Order, the Court required Plaintiff to either: “(1)
provide the correct address for Defendants Andersen; or (2) otherwise show cause why his
claims against Defendants Andersen should not be dismissed for failure to effect service.”
(Id. at 4.)
On March 17, 2026, Plaintiff filed a response to the Order to Show Cause. (Doc.
49.) However, Plaintiff’s response did not pertain to Defendant Andersen. See generally
(id.) Rather, Plaintiff’s response solely mentions Defendant Vargas. (Id.) Defendant
Vargas has already answered the Complaint. (Doc. 44.) On March 19, 2026, Defendant
Vargas filed a notice of no objection to the dismissal of Defendant Andersen. (Doc. 50.)
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To date, Plaintiff has neither served Defendant Andersen nor shown cause why his
claim against Defendant Andersen should not be dismissed without prejudice.
Additionally, the Court notes that since the District Court’s Substitution Order, 221 days
have passed without Defendant Andersen being served—well beyond the 60 days
permitted in the order. See (doc. 27.)
II. Legal Standard.
Rule 16.2(b)(2)(B) of the Local Rules of Civil Procedure, which governs prisoner
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
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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.”).
Even if a plaintiff fails to show good cause, the district court may also, in its
discretion, “extend time for service upon a showing of excusable neglect.” Lemoge, 587
F.3d at 1198. To determine whether there is “excusable neglect,” the Court considers: (1)
the danger of prejudice to the opposing party; (2) the length of the delay and its potential
impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted
in good faith. Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 1997) (citing
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 395 (1993)).
III. Discussion.
To date, the docket does not reflect that Defendant Andersen has been served. Since
the District Court’s August 28, 2025 Order, 221 days have passed. See (doc. 27.) Allowing
Defendant Andersen to remain in this action indefinitely without service will cause a
lengthy delay in this action. At this juncture, the other Defendant—Defendant Vargas—
has answered Plaintiff’s Complaint. See (doc. 44.) Allowing Defendant Andersen to remain
unserved indefinitely will result in delay of this litigation, which is not in the best interest
of any party. Additionally, the Court does not find excusable neglect because Plaintiff has
neither served Defendant Andersen nor responded to this Court’s order to show cause as
to Defendant Andersen. (Doc. 49.) Because of the risk of considerable delay this action,
and in the absence of excusable neglect, the Court recommends that Defendant Andersen
be dismissed without prejudice.
//
//
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Accordingly,
IT IS RECOMMENDED that Defendant Andersen be DISMISSED WITHOUT
PREJUDICE for failure to effect timely service pursuant to Fed. R. Civ. P. 4(m).
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
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 6th day of April, 2026.
Honorable John Z. Boyle
United States Magistrate Judge
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