Isreal v. Arizona, State of et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Kabir elohim Isreal,
Plaintiff,
v.
State of Arizona, et al.,
Defendants.
No. CV-24-02712-PHX-DLR
ORDER
Before the Court are the following:
1. The Report and Recommendation (“R&R”) of Magistrate Judge Metcalf
recommending that the Court dismiss Defendants State of Arizona and Officers
Papale, Armstrong, Barrera-Diaz, Wilcox, Lopez, Ibarra, Roselli, Liniger,
Knueppel, Tarango, Perez-Cortex, Parada, and Gerbich without prejudice due to
Plaintiff’s failure to serve them. (Doc. 107.)
2. Plaintiff’s motion asking for reassignment of this case to the undersigned. (Doc.
113.)
3. Plaintiff’s motion asking the Court to “recognize and preserve all previously
stated claims against the voluntarily dismissed parties under the ‘relation-back’
doctrine of Rule 15(c)(1)[.]” (Doc. 121.)
4. The R&R recommending that Plaintiff’s motion to stay this case on certain terms
dictated by him (Doc. 109) be denied, that this case nonetheless be stayed
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pending the completion of Plaintiff’s criminal prosecution in Maricopa County
Superior Court, and that Defendant’s second motion for sanctions (Doc. 131) be
denied without prejudice to it being reasserted following termination of the stay.
(Doc. 144.)
5. The R&R recommending that this case be dismissed without prejudice due to
Plaintiff’s failure to prosecute. (Doc. 147.)
For reasons explained below, the Court will (1) adopt the R&R regarding the dismissal of
certain defendants for lack of service, (2) deny Plaintiff’s motion for reassignment of his
case, (3) deny Plaintiff’s motion asking the Court to render an advisory opinion about
whether the relation-back doctrine would govern hypothetical future amendments to his
complaint, (4) adopt the R&R regarding Plaintiff’s motion for a stay and Defendant’s
second motion for sanctions, and (5) not adopt the R&R recommending that this case be
dismissed due to Plaintiff’s failure to prosecute.
I. Dismissal of unserved defendants (Doc. 107)
The R&R recommends that the Court dismiss Defendants State of Arizona and
Officers Papale, Armstrong, Barrera-Diaz, Wilcox, Lopez, Ibarra, Roselli, Liniger,
Knueppel, Tarango, Perez-Cortex, Parada, and Gerbich because Plaintiff did not serve
them. The Court will not adopt the R&R with respect to Defendants State of Arizona and
Officers Barrera-Diaz, Wilcox, Ibarra, Liniger, Knueppel, Tarango, Perez-Cortex, Parada,
and Gerbich because Plaintiff has since voluntarily dismissed his claims against those
defendants. (Doc. 120.) The R&R therefore is moot as to them.
Regarding the remaining unserved defendants, Plaintiff objects on three grounds.
First, he claims Officers Lopez, Armstrong, and Roselli should not be dismissed because
they “have received actual notice via represented by counsel for the City of Mesa.” (Doc.
122 at 1.) Second, he contends that his failure to serve “was due in part to overlapping
deadlines, multiple active motions, and pending court decisions on protective orders and
evidence issues.” (Id.) Third, he argues that service on the Mesa Police Chief Ken Cost
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constitutes adequate service on “the intended officers under his command.” (Id. at 2.)
Plaintiff’s objections are overruled.
First, Federal Rule of Civil Procedure 4 requires Plaintiff to serve each of the
defendants he has named. Indeed, the Court advised Plaintiff of his service obligations in
an order dated December 4, 2024. (Doc. 8 at 3 (“Plaintiff must either serve each unserved
Defendant or seek a waiver of service for each Defendant.”).) Service on the City of Mesa
does not constitute service on Officers Lopez, Armstrong, and Roselli.
Second, Plaintiff has not shown that his failure to serve was the result of excusable
neglect. Plaintiff vaguely claims that his failure to serve was due to “overlapping
deadlines,” and various pending motions, but he fails to explain how any of these other
motions or deadlines impacted his service obligations or efforts. To the contrary, the Court
advised Plaintiff of his service obligations, the relevant service deadlines, and the
consequences of failing to timely serve. (Doc. 8.) What’s more, as reflected in the R&R,
Plaintiff “has not sought summonses or made any other identifiable effort to complete
service on these defendants,” nor did he respond to the Court’s order directing him to show
cause why these defendants should not be dismissed for lack of service. (Doc. 107 at 1.)
This history shows an inexcusable lack of diligence on Plaintiff’s part.
Finally, it is of no moment that Plaintiff allegedly served Chief Cost.1 Chief Cost is
not a defendant in this action, and he does not have authority to accept service on behalf of
other unnamed defendants simply because he is their supervisor. See Drake v. City of Eloy,
No. CV-14-00670-PHX-DGC, 2014 WL 3421038, at *2 (D. Ariz. July 14, 2014).
For these reasons, Plaintiff’s objections are overruled, and the Court adopts the
R&R as it pertains to Officers Papale, Lopez, Armstrong, and Roselli, who shall be
dismissed without prejudice pursuant to Rule 4(m).
II. Reassignment (Doc. 113)
Plaintiff has filed a “Motion to Remove Referral to Magistrate Judge and Reassign
to Presiding District Judge.” (Doc. 113.) In that motion, Platiniff argues that his case should
1 As Defendant notes, “it is impossible for Plaintiff to have served Chief Cost
because . . . a summons has never been issued in this case.” (Doc. 125 at 2.)
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be reassigned because (1) he did not consent under Federal Rule of Civil Procedure
73(b)(1) to have his case presided over by a magistrate judge and (2) Magistrate Judge
Metcalf is biased against him and in favor of Defendants. (Id. at 1-2.) Magistrate Judge
Metcalf liberally construed Plaintiff’s motion as including both a request to terminate the
referral to a magistrate judge (which must be addressed by the undersigned) and a request
that Magistrate Judge Metcalf recuse pursuant to 28 U.S.C. § 455 (which Magistrate Judge
Metcalf would address). (Doc. 119.)
Magistrate Judge Metcalf denied Plaintiff’s motion to the extent it sought recusal.
(Doc. 141.) In that order, Magistrate Judge Metcalf explained (correctly) that he had not
been assigned to “preside” over Plaintiff’s case. Instead, the presiding district judge had
referred the case to him for all non-dispositive pretrial proceedings under 28 U.S.C. §
636(b)(1). (Doc. 8.) Plaintiff’s consent is not required for such referrals, and Plaintiff
identifies no instance in which Magistrate Judge Metcalf exceeded the scope of the referral
by ruling on a dispositive matter (as opposed to submitting recommendations on dispositive
matters for the presiding district judge to consider). Magistrate Judge Metcalf also
thoroughly addressed and rejected Plaintiff’s accusations of bias. Though Plaintiff might
be dissatisfied with some of Magistrate Judge Metcalf’s rulings and recommendations,
adverse rulings alone are insufficient to demonstrate judicial bias. See Liteky v. United
States, 510 U.S. 540, 555 (1994).
Against this backdrop, the Court finds no basis for withdrawing the reference to
Magistrate Judge Metcalf. Plaintiff’s motion to remove the reference (Doc. 113) is denied,
and this matter remains referred to Magistrate Judge Metcalf for all pretrial proceedings as
authorized under § 636(b)(1).
III. Relation back (Doc. 121)
As previously noted, Plaintiff voluntarily dismissed without prejudice his claims
against Defendants State of Arizona and Officers Barrera-Diaz, Wilcox, Ibarra, Liniger,
Knueppel, Tarango, Perez-Cortex, Parada, and Gerbich. (Doc. 120.) Separately, Plaintiff
filed a motion titled “Motion to Preserve Claims Under Rule 15 Relation-Back Doctrine,”
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which, at bottom, asks the Court to issue an advisory ruling that if Plaintiff chooses at some
future point to amend his complaint in this case to reassert claims against the voluntarily
dismissed defendants, those amendments will relate back to the date of his original
complaint for statute of limitations purposes. (Doc. 121.) This motion is denied because it
is not appropriate for the Court to issue advisory opinions on hypothetical future scenarios.
If Plaintiff one day amends his complaint to reassert claims against any of the voluntarily
dismissed defendants, and if in response those defendants assert a statute of limitations
defense, the Court can address the relation-back doctrine at that point. But unless and until
that occurs, it is premature for the Court to opine whether any hypothetical statute of
limitations defense would be successful. Plaintiff’s motion for such a ruling is denied.
IV. Stay (Doc. 144)
In this case, Plaintiff brings various civil rights claims arising out of a traffic stop.
According to the parties’ case management report, Plaintiff is currently being prosecuted
for weapons misconduct and driving under the influence arising from the same facts.
Accordingly, Magistrate Judge Metcalf ordered the parties to show cause why this case
should not be dismissed under Heck v. Humphrey, 512 U.S. 477 (1994) or stayed under
Younger v. Harris, 401 U.S. 37 (1971). (Doc. 85.) Defendant responded by affirming that
Plaintiff’s criminal prosecution in Maricopa County Superior Court is ongoing and that
this matter should be stayed until that prosecution concludes. (Doc. 97.) Plaintiff did not
respond to the order to show cause. Instead, he filed a motion requesting that his case be
stayed pending the disposition of the state court criminal proceedings, but also insisting on
various conditions to the stay, such as granting him unilateral authority to terminate it.
(Doc. 109.)
Magistrate Judge Metcalf has issued an R&R recommending that the Court (1) deny
Plaintiff’s motion to stay to the extent it seeks to impose various conditions on the stay, (2)
sua sponte stay this case pending the outcome of Plaintiff’s state court criminal case, (3)
rule on Plaintiff’s motion for reassignment, motion regarding the relation-back doctrine,
and the R&R regarding unserved defendants, and (4) deny Defendant’s sanctions motion
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without prejudice to Defendant reasserting the motion, if appropriate, after the stay is lifted.
(Doc. 144.)
Plaintiff has filed an objection to the R&R (Doc. 148), but as the Court understands
the objection, Plaintiff does not oppose the recommendations. Plaintiff agrees that this
matter should be stayed. He also withdraws his request for unilateral authority to terminate
the stay. Finally, he does not oppose the recommendation that the Court rule on his motion
for reassignment, motion regarding the relation-back doctrine, and objections to the R&R
regarding the underserved defendants. He just asks the Court to rule in his favor.
As explained above, the Court adopts the R&R regarding dismissal of the unserved
defendants, denies Plaintiff’s motion for reassignment, and denies Plaintiff’s motion
regarding the relation-back doctrine. With those issues resolved, all that remains is the
issue of the stay—an issue upon which all parties agree. Accordingly, the Court will adopt
the R&R and stay this case pending the completion of Plaintiff’s criminal prosecution in
Maricopa County Superior Court Cause No. CR 2024-006869.
V. Dismissal for failure to prosecute (Doc. 147)
On August 11, 2025, mail from the Clerk of the Court to Plaintiff was returned
undeliverable, reflecting that Plaintiff was “NOT KNOWN.” In the Notice to Self-
Represented Litigant issued October 8, 2024, Plaintiff was cautioned: “You must
immediately notify the Court of any change of address. Local Rule of Civil Procedure
83.3(d).” (Doc. 3 at 5.) Plaintiff has not filed a notice of change of address. Accordingly,
Magistrate Judge Metcalf issued an order directing Plaintiff to either file a notice of change
of address or a response showing cause why the case should not be dismissed for failure to
prosecute. (Doc. 146.) Plaintiff failed to do either by the deadline provided, even though
the record showed that Plaintiff’s copy of the order to show cause had not been returned as
undeliverable. Given Plaintiff’s failure to respond, Magistrate Judge Metcalf has
recommended dismissal without prejudice for failure to prosecute. (Doc. 147.)
Plaintiff subsequently filed a document titled “Reply in Support of Motion to Stay
Proceedings and Remove Referral to Magistrate Judge” (Doc. 151), which the Court
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liberally construes, in part, as an objection to the R&R. In the objection, Plaintiff affirms
that his address has not changed, that the isolated returned-mail issue must have been a
clerical postal error not attributable to him, that he has received all subsequent documents,
and that he has every intention of prosecuting this case.
Given Plaintiff’s assertions that his address has not changed and that he intends to
prosecute his case, the Court will not adopt the R&R. However, to date Plaintiff has
demonstrated a pattern of ignoring orders to show cause issued by Magistrate Judge
Metcalf, only to later object when orders or R&Rs are unfavorable to him. Indeed, the
undersigned previously admonished Plaintiff about this very issued when it denied an
earlier R&R recommending dismissal due to Plaintiff’s failure to respond to an order to
show cause. (Doc. 74.) The undersigned warned Plaintiff that if he “continues to not
comply with the Court’s orders moving forward, he may face sanctions, including the
dismissal of his case.” (Id. at 3.)
This pattern must stop. Plaintiff once again is advised he must carefully review any
orders this Court issues and comply with them. This includes orders to show cause. If this
Court issues an order to show cause, Plaintiff must respond to it. He cannot ignore it and
complain later when adverse consequences flow from his failure to comply. Plaintiff may
face sanctions, including the dismissal of his case, for failure to comply with Court orders.
What’s more, if this pattern continues, it will be harder for this Court to find that Plaintiff’s
failures are excusable, increasing the likelihood that a dismissal sanction will issue.
IT IS ORDERED that R&R recommending dismissal of certain unserved
defendants (Doc. 107) is ADOPTED IN PART. The claims against Officers Papale,
Lopez, Armstrong, and Roselli are DISMISSED WITHOUT PREJUDICE pursuant to
Rule 4(m).
IT IS FURTHER ORDERED that Plaintiff’s motion for reassignment (Doc. 113)
is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s motion regarding the relation-back
doctrine (Doc. 121) is DENIED.
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IT IS FURTHER ORDERED that the R&R at Doc. 144 is ACCEPTED as
follows:
1. Plaintiff’s motion to stay, subject to various conditions, (Doc. 109) is DENIED.
2. This matter nonetheless is STAYED pending the completion of Plaintiff’s
criminal prosecution in Maricopa County Superior Court Cause No. CR 2024-
006869, as follows:
a. The unexpired deadlines under the Preliminary Scheduling Order are
VACATED to be reset by further order, including the deadline for
settlement discussions and a report thereon, completion of the deposition
of Plaintiff, completion of discovery by service of supplemental
disclosures and responses to discovery, discovery motions, dispositive
motions, and final preliminary motions.
b. Any unexpired deadlines for service of responses to discovery are
VACATED.
c. The service of further discovery requests is STAYED.
d. The filing of motions without leave of court, other than motions to
terminate this stay, is STAYED.
3. Defendant shall file on or before the first day of every calendar quarter a status
report advising the Court of the status of Plaintiff’s criminal proceeding in
Maricopa County Superior Court Cause No. CR 2024-006869.
4. The parties shall jointly file with the Court a notice of completion of Plaintiff’s
criminal prosecution in Maricopa County Superior Court Cause No. CR 2024-
006869, including the nature of the completion, within 30 days of such
completion.
5. Defendant’s Second Motion for Sanctions (Doc. 131) is DENIED WITHOUT
PREJUDICE to it being reasserted following termination of the stay.
6. Defendant’s Motion to Amend Schedule (Doc. 143) is DENIED as moot.
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IT IS FURTHER ORDERED that the R&R at Doc. 147 recommending dismissal
of this case for Plaintiff’s failure to prosecute is NOT ACCEPTED.
Dated this 23rd day of March, 2026.
Douglas L. Rayes
Senior United States District Judge
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