Bassford v. Mesa, City of et al

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JL
WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Gabriel J. Bassford,
Plaintiff,
v.
City of Mesa, et al.,
Defendants.
No. CV-25-01034-PHX-JAT (CDB)
ORDER
Pro se Plaintiff Gabriel J. Bassford brought this civil rights action pursuant to 42
U.S.C. § 1983. Defendants City of Mesa, Kevin Bailey, Juan Giraldo, and Dominic
Higgins have filed a Motion to Dismiss the First Amended Complaint pursuant to Rule
12(b)(4) and 12(b)(5) based on insufficient process and insufficient service of process.
(Doc. 81.) Defendant City of Mesa has filed a separate Motion for Summary Judgment on
the merits of Plaintiff’s claims against it. (Doc. 86.) Plaintiff was informed of his rights
and obligations to respond to the Motions (Docs. 82, 89), and he did not file a response to
either Motion. Plaintiff has filed a “Protective Rule 60(b)(4) Motion to Vacate Void
Orders, Reassignment to a Neutral Article III Judge, and to Restore Constitutional Process”
(Doc. 103) and a “Motion to Strike Unauthorized Magistrate Reassignment” (Doc. 105).
The Court will deny Plaintiff’s Motions, grant in part and deny in part Defendants’
Motion to Dismiss, and deny the City of Mesa’s Motion for Summary Judgment without
prejudice.
. . . .
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I. Relevant Procedural History
Plaintiff filed the original Complaint on March 28, 2025 and paid the filing and
administrative fees. (Doc. 1.) In an April 3, 2025 Order, the Court directed Plaintiff to
serve each Defendant or seek a waiver of service for each Defendant within 90 days of the
filing date of the Complaint or 60 days of the filing date of the Order, whichever was later.
(Doc. 7.)
On June 26, 2025, Plaintiff filed a Motion to Reset Service Deadline. (Doc. 10.)
The next day, Plaintiff filed Summonses for Defendants City of Mesa, Giraldo, and
Higgins. (Doc. 11.) On June 30, 2025, Plaintiff filed a Notice of Mailing and Declaration
of Service and a request that the United States Marshal personally serve the Complaint on
Defendants and lodged a proposed First Amended Complaint. (Docs. 26-28.)
In a July 16, 2025 Order, the Court noted that the original Complaint had not been
served on any Defendant and that Rule 15 permitted amendment once as a matter of course.
(Doc. 77 at 4.) The Court directed the Clerk of Court to file the lodged proposed First
Amended Complaint. (Id.) The Court observed that the 147-page First Amended
Complaint consisted of 26 claims against 24 Defendants and John Does and that the
Defendants named therein were entitled to immunity from suit. (Id.) Accordingly, the
Court dismissed all Defendants named in the First Amended Complaint except Defendants
City of Mesa, Mesa Police Department, Bailey, Giraldo, and Higgins. (Id. at 4-6.)
The Court denied Plaintiff’s request for service by the U.S. Marshal because
Plaintiff is not proceeding in forma pauperis in this matter. (Id. at 8.) The Court ordered
Plaintiff to serve the First Amended Complaint on Defendants City of Mesa, Mesa Police
Department, Bailey, Giraldo, and Higgins and explicitly extended the deadline to do so to
August 28, 2025. (Id.)
On July 17, 2025, Defendants City of Mesa, Giraldo, and Higgins filed a Motion to
Dismiss the original Complaint for insufficient process and insufficient service of process.
(Doc. 79.) On August 11, 2025—before the expiration of the deadline the Court set for
Plaintiff to serve them—Defendants City of Mesa, Mesa Police Department, Bailey,
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Giraldo, and Higgins filed their Motion to Dismiss the First Amended Complaint for
insufficient process and insufficient service of process. (Doc. 81.) That same day, the
Court ordered Plaintiff to file a response to the Motion to Dismiss the First Amended
Complaint by September 10, 2025. (Doc. 82.)
On August 18, 2025, Plaintiff filed an Omnibus Motion to Strike Deficient Motions
to Dismiss, Enter Default, Reinstate Relief, and Preserve Constitutional Posture for
Supreme Court Review. (Doc. 83.) Plaintiff included copies of certified mail return
receipts indicating that he had sent copies of the Summons and First Amended Complaint
by certified mail to Defendants City of Mesa, Mesa Police Department, Bailey, Giraldo,
and Higgins on July 18, 2023. (Doc. 83-1 at 2-5.)
On August 25, 2025, Plaintiff filed a “Notice of Filing Declaration of Service.”
(Doc. 84.) Plaintiff described his attempts to serve the City of Mesa, asserting that on
August 14, 2025, an individual named Daisy Lopez had personally delivered copies of the
Summons, Complaint, and the July 16, 2025 Order to Rosalind Williams at 20 E. Main
Street, Mesa, Arizona 85201, as an authorized agent or employee, and Ms. Williams
accepted service for the City of Mesa. (Id. at 1-2.) Plaintiff “acknowledge[d] uncertainty
as to whether the Court will deem previous mail delivery to a departmental mail recipient
at the municipal building as sufficient to constitute service under the Arizona Rules of Civil
Procedure when the recipient as authorized agent affected service upon each defendant.”
(Id. at 2.) Plaintiff contended that “[e]ach defendant then provided” defense counsel “of
the notice in having his representation on their behalf.” (Id.) Plaintiff stated that to ensure
service was not deemed defective or untimely, he initiated duplicate personal service
efforts to directly serve Defendant Higgins through an authorized agent. (Id.) No
additional service documents were filed.
On September 4, 2025, the City of Mesa filed its Motion for Summary Judgment.
(Doc. 86.) In an October 23, 2025 Order, the Court denied Defendants’ Motion to Dismiss
the original Complaint. (Doc. 99.)
On November 19, 2025, Plaintiff filed his Protective Rule 60(b)(4) Motion (Doc.
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103), and on December 4, 2025, he filed his Motion to Strike Unauthorized Magistrate
Reassignment (Doc. 105). Defendants did not file a response to either Motion.
II. Plaintiff’s Motions
A. Rule 60(b)(4) Motion
In his Protective Rule 60(b)(4) Motion, Plaintiff moves to vacate all Orders in this
case as void for lack of jurisdiction, structural due process violations, discriminatory denial
of accommodations under the Americans with Disabilities Act, “refusal to adhere to
controlling Supreme Court and Ninth Circuit precedent,” acceptance of unauthorized
filings, “docket manipulation,” conflicts requiring mandatory recusal under 28 U.S.C. §
455(b)(5)(i), and ethical violations undermining the integrity of the tribunal. (Doc. 103 at
2.) Plaintiff asserts his Motion is filed “protectively, to preserve the record and to prevent
any inference of waiver regarding jurisdictional defects, constitutional injuries, or systemic
prejudice.” (Id.) He asks the Court to vacate all orders as void, strike all of Defendants’
filings before counsel filed a Notice of Appearance, enter default under Rule 55(a) of the
Federal Rules of Civil Procedure, reassign this case, “correct” the docket classification,
grant him CM/ECF access, sanction defense counsel, vacate “gag” restrictions, and restore
his due process rights, adjust deadlines, and “reopen filings.” (Id. at 12-13.)
Rule 60(b)(4) provides, “On motion and just terms, the court may relieve a party or
its legal representative from a final judgment, order, or proceeding” if “the judgment is
void.” Plaintiff cannot seek relief under Rule 60(b)(4) because there is no final judgment
in this matter. Moreover, a “‘judgment is not void,’ for example, ‘simply because it is or
may have been erroneous.’” United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260,
270 (2010). “Instead, Rule 60(b)(4) applies only in the rare instance where a judgment is
premised either on a certain type of jurisdictional error or on a violation of due process that
deprives a party of notice or the opportunity to be heard.” Id. at 271. Thus, “[f]ederal
courts considering Rule 60(b)(4) motions that assert a judgment is void because of a
jurisdictional defect generally have reserved relief only for the exceptional case in which
the court that rendered judgment lacked even an ‘arguable basis’ for jurisdiction.”
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Plaintiff’s Motion—premised on his dissatisfaction with the Court’s decisions in this
matter—wholly fails to meet the standard for relief under Rule 60(b)(4).
For the foregoing reasons, the Court will deny Plaintiff’s Protective Rule 60(b)(4)
Motion.
B. Motion to Strike
In his Motion to Strike, Plaintiff challenges the reassignment of this matter to a new
Magistrate Judge. (Doc. 105.) Plaintiff’s Motion is meritless. Just as the Court may
appoint a Magistrate Judge pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil
Procedure for all pretrial proceedings as authorized under 28 U.S.C. § 636(b)(1), so may
the Court reassign a matter to a different Magistrate Judge. The Court will deny Plaintiff’s
Motion to Strike.
III. Motion to Dismiss
Defendants move to dismiss the First Amended Complaint under Rules 12(b)(4) and
(5) of the Federal Rules of Civil Procedure for insufficient process and insufficient service
of process. (Doc. 81.) Defendants argue that Plaintiff’s attempts to mail the Summons and
First Amended Complaint to Defendants did not comply with the Federal Rules of Civil
Procedure or the Arizona Rules of Civil Procedure. (Id. at 4.) Defendants contend that
“[f]urther attempts to serve” the First Amended Complaint would prejudice Defendants
and would not cause severe prejudice to Plaintiff, and dismissing this case is “more
appropriate than an order quashing the insufficient service via mail because the FAC lacks
any viable legal claims.” (Id. at 10.)
A motion to dismiss under Rule 12(b)(4) challenges irregularities in the contents of
the summons, and a motion under Rule 12(b)(5) challenges the manner of delivery of the
summons and complaint. See Chilicky v. Schweiker, 796 F.2d 1131, 1136 (9th Cir. 1986),
rev’d on other grounds sub. nom Schweiker v. Chilicky, 487 U.S. 412 (1988)).
Defendants do not challenge the content of the Summonses; rather, they challenge
the sufficiency of service. Thus, the Court will evaluate Defendants’ Motion to Dismiss
only under Rule 12(b)(5) of the Federal Rules.
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A. Rule 4
Rule 4 of the Federal Rules of Civil Procedure sets forth the requirements for service
of process.
A person may be served in a judicial district of the United States by:
(1) following state law for serving a summons in an action
brought in courts of general jurisdiction in the state where the
district court is located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the
complaint to the individual personally;
(B) leaving a copy of each at the individual’s
dwelling or usual place of abode with someone of
suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized
by appointment or by law to receive service of process.
Fed. R. Civ. P. 4(e). A municipality must be served by: “(A) delivering a copy of the
summons and of the complaint to its chief executive officer; or (B) serving a copy of each
in the manner prescribed by that state’s law for serving a summons or like process on such
a defendant.” Fed. R. Civ. P. 4(j)(2).
Under Rule 4(m), the plaintiff must serve a defendant with a summons and a copy
of the complaint within 90 days after the complaint is filed. Fed. R. Civ. P. 4(m). If the
plaintiff fails to do so, the court must either dismiss the complaint without prejudice against
that defendant or order that service be made within a specified time. Id. But if the plaintiff
shows good cause for the delay, the court “must extend the time for service for an
appropriate period.” Id. Thus, “Rule 4(m) provides two avenues for relief. The first is
mandatory: the district court must extend time for service upon a showing of good cause.
The second is discretionary: if good cause is not established, the district court may extend
time for service upon a showing of excusable neglect.” Lemoge v. United States, 587 F.3d
1188, 1198 (9th Cir. 2009) (internal citations omitted); see Henderson v. United States,
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517 U.S. 654, 661 (1996) (recognizing that Rule 4’s period for service “operates not as an
outer limit subject to reduction, but as an irreducible allowance”). When exercising its
discretion to extend the time for service, the Court may consider such factors as “prejudice
to the defendant, actual notice of a lawsuit, and eventual service.” Efaw v. Williams, 473
F.3d 1038, 1041 (9th Cir. 2007) (internal quotations and citation omitted). But a district
court retains “broad discretion to either grant an extension of time, or to dismiss an action
entirely, for failure to effect service.” Jones v. Automobile Club of Southern Cal., 26 F.
App’x 740, 742 & n.7 (9th Cir. 2002) (citing In re Sheehan, 253 F.3d 507, 513 (9th Cir.
2001)).
B. City of Mesa
As noted, Plaintiff filed service documents indicating service on Defendant City of
Mesa on August 14, 2025. Rule 4.1(h)(3) of the Arizona Rules of Civil Procedure provides
that a municipal corporation may be served by delivering a copy of the summons and the
pleading being served to the clerk of that municipal corporation. Ariz. R. Civ. P. 4.1(h)(3).
The service documents that Plaintiff filed indicate that he delivered the First Amended
Complaint and Summonses to Rosalind Williams, who accepted service on behalf of the
City of Mesa.1 The Court finds Plaintiff timely and properly served the City of Mesa. The
Court will therefore deny Defendants’ Motion to Dismiss as to the City of Mesa, without
prejudice to the City of Mesa filing a renewed motion to dismiss.2
C. Mesa Police Department
Whether Plaintiff properly served the Mesa Police Department is irrelevant because
it is a non-jural entity that is not subject to suit under § 1983. See Gotbaum v. City of Phx.,
617 F. Supp. 2d 878, 886 (D. Ariz. 2008); Braillard v. Maricopa County, 232 P.3d 1263,
1269 (Ariz. Ct. App. 2010) (county sheriff’s office is a nonjural entity); see also Vicente v.
1 In Defendants’ October 15, 2025 Response to Plaintiff’s Motion for Entry of
Default, Defendants acknowledged that Plaintiff personally served the City of Mesa with
the First Amended Complaint. (Doc. 96 at 4.)
2 As discussed below, the City of Mesa’s Motion for Summary Judgment is
premature.
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City of Prescott, CV-11-08204-PCT-DGC, 2012 WL 1438695, at *3 (D. Ariz. Apr. 26,
2012) (city fire department is a nonjural entity); Wilson v. Yavapai County Sheriff’s Office,
CV-11-08199-PCT-JAT, 2012 WL 1067959, at *4 (D. Ariz. Mar. 29, 2012) (county
sheriff’s office and county attorney’s office are nonjural entities). The Court will therefore
grant Defendants’ Motion to Dismiss as to the Mesa Police Department.
D. Individual Defendants
Defendants are correct that Plaintiff never properly served Defendants Bailey,
Giraldo, and Higgins because Plaintiff only attempted service by certified mail. Contrary
to Plaintiff’s belief, service by certified mail was not proper under Rule 4(e)(1) of the
Federal Rules of Civil Procedure.
As noted, under Rule 4(e)(1), a person may be served by following state law for
serving a summons in an action brought in courts of general jurisdiction in the state where
the district court is located or where service is made. In Arizona, an individual who is
subject to service under Rule 4.1(d) of the Arizona Rules of Civil Procedure “has a duty to
avoid unnecessary expense in serving the summons.” Ariz. R. Civ. P. 4.1(c)(1). “To avoid
costs, the plaintiff may notify the defendant that an action has been commenced and request
that the defendant waive service of a summons.” Id. The notice and request must be sent
by first-class mail or other reliable means. Id. Plaintiff did not request that Defendants
waive service of the Summons.
Because Plaintiff did not request waiver of service, Rule 4.1(d) of the Arizona Rules
of Civil Procedure applies. Under Rule 4.1(d), an individual may be served by:
(1) delivering a copy of the summons and the pleading being
served to that individual personally;
(2) leaving a copy of each at that individual’s dwelling or usual
place of abode with someone of suitable age and discretion
who resides there; or
(3) delivering a copy of each to an agent authorized by
appointment or by law to receive service of process.
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Ariz. R. Civ. P. 4.1(d). Plaintiff did not comply with any of the methods provided for
service in Rule 4.1(d) and therefore did not properly serve the individual Defendants under
the Arizona Rules of Civil Procedure. Thus, the Court must decide whether to dismiss the
First Amended Complaint as to Defendants Bailey, Giraldo, and Higgins or further extend
the time for service.
The Ninth Circuit has stated that “Rule 4 is a flexible rule that should be liberally
construed so long as a party receives sufficient notice of the complaint.” Crowley v.
Bannister, 734 F.3d 967, 975 (9th Cir. 2013) (internal quotation marks and citation
omitted). However, actual notice will not subject defendants to personal jurisdiction if
service was not made in “‘substantial compliance with Rule 4.’” Id. (quoting Jackson v.
Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982) (internal citations omitted)).
Plaintiff’s repeated attempts to serve Defendants Bailey, Giraldo, and Higgins by
U.S. mail do not represent good faith efforts at proper service. Although Defendants had
actual notice of the lawsuit, service by certified mail—particularly where Plaintiff knew
how to effect proper service, as he did on the City of Mesa—was not “substantial
compliance” with Rule 4. By failing to respond to Defendants’ Motion to Dismiss, Plaintiff
has failed to show good cause for a further extension of time for service or excusable
neglect for his failure to effect proper service. The Court will therefore grant Defendants’
Motion to Dismiss as to Defendants Bailey, Giraldo, and Higgins.
IV. City of Mesa’s Motion for Summary Judgment
Generally, summary judgment can be granted only “after adequate time for
discovery.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Although Federal Rule
of Civil Procedure 56 does not limit how promptly a party may seek summary judgment,
granting summary judgment “is improper when basic discovery is not yet completed[.]”
Morales v. Allstate Ins. Co., C-95-02308 PVT, 1995 WL 616654, at *2 (N.D. Cal. Oct. 13,
1995) (citing 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §
2741 (2nd ed. 1983)) (“the granting of summary judgment will be held to be error when
discovery is not yet completed”). A district court has discretion to decline to rule on a
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summary judgment motion on the grounds that it would be premature to do so before
discovery is completed. See Pelletier v. Fed. Home Loan Bank of S.F., 968 F.2d 865, 871
n.9 (9th Cir. 1992).
The City of Mesa’s Motion for Summary Judgment is related to the merits of
Plaintiff’s claims. The City of Mesa has not answered the First Amended Complaint, the
Court has not issued a Scheduling Order, and the parties have not engaged in discovery.
The Court will therefore deny the City of Mesa’s Motion for Summary Judgment without
prejudice.
As noted, the Court will permit the City of Mesa to file a renewed motion to dismiss
Plaintiff’s First Amended Complaint. If the City of Mesa does not renew its motion to
dismiss, it must answer the First Amended Complaint. If the City of Mesa files a motion
to dismiss and it is denied, or if the City of Mesa answers the First Amended Complaint,
the Court will issue a Scheduling Order that sets forth deadlines for discovery and
dispositive motions.
IT IS ORDERED:
(1) The reference to the Magistrate Judge is withdrawn as to Defendants’
Motion to Dismiss (Doc. 81), Defendant City of Mesa’s Motion for Summary Judgment
(Doc. 86), and Plaintiff’s “Protective Rule 60(b)(4) Motion to Vacate Void Orders,
Reassignment to a Neutral Article III Judge, and to Restore Constitutional Process” (Doc.
103) and “Motion to Strike Unauthorized Magistrate Reassignment” (Doc. 105).
(2) Plaintiff’s Motions (Docs. 103, 105) are denied.
(3) Defendants’ Motion to Dismiss (Doc. 81) is granted in part and denied in
part. The Motion is granted as to Defendants Mesa Police Department, Bailey, Higgins,
and Giraldo. The Motion is denied as to the City of Mesa.
(4) Defendants Mesa Police Department, Bailey, Higgins, and Giraldo are
dismissed without prejudice.
(5) Defendant City of Mesa’s Motion for Summary Judgment (Doc. 86) is
denied without prejudice.
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(6) Within 21 days of the filing date of this Order, the City of Mesa may file a
renewed motion to dismiss the First Amended Complaint. If the City of Mesa does not file
a renewed motion to dismiss, it must file an Answer to the First Amended Complaint within
21 days of the filing date of this Order.
Dated this 11th day of February, 2026.
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