Hodge v. Hamilton et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
DANNY HODGE, JR., )
)
Plaintiff, )
)
v. ) Case No. CIV-24-823-HE
)
CASEY HAMILTON, et al., )
)
Defendants. )
REPORT AND RECOMMENDATION
Plaintiff Danny Hodge, Jr., proceeding pro se and in forma pauperis, filed a
complaint alleging violations of his civil rights. Doc. 1. United States District Judge Joe
Heaton referred this matter to the undersigned Magistrate Judge in accordance with 28
U.S.C. § 636(b)(1)(B)-(C). After screening the complaint, the Court ordered Plaintiff to
complete service on each remaining Defendant. Plaintiff has not done so and, for the
reasons set forth below, the undersigned recommends that the Court dismiss the action for
failure to serve.
I. Analysis
After initial review of the complaint, the undersigned recommended partial
dismissal of Plaintiff’s claims. Doc. 13. Judge Heaton adopted the recommendation,
leaving only Plaintiff’s claim alleging failure to protect against Deputy Warden Bo
Reynolds, Lieutenant Williamson, Corrections Officer Clark, and Case Manager Cox,
seeking money damages in their individual capacities and prospective injunctive relief in
their official capacities. Doc. 14.
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On May 7, 2025, the Court ordered Plaintiff to complete service on each remaining
Defendant not later than August 5, 2025. Doc. 15. Because Plaintiff proceeds in forma
pauperis, service was to be attempted by the United States Marshals Service (“USMS”).
To facilitate service by the USMS, Plaintiff was ordered to complete the necessary service
papers and return them to the Clerk of Court not later than June 6, 2025. Id. On June 3,
2025, Plaintiff returned the service papers, but he had not properly completed them.
Doc. 17. The Clerk of Court notified Plaintiff of the deficiencies, instructed him on how
to properly complete the service papers, and again provided him with the necessary papers.
Upon Plaintiff’s motion, on June 6, 2025, the Court extended the date for return of
service papers to the Clerk of Court to not later than July 7, 2025, and extended the date
for completion of service to not later than September 5, 2025. Doc. 19.
On September 12, 2025, after Plaintiff had not complied with the Court’s Order to
complete service, the Court ordered Plaintiff to show cause in writing why he had not taken
the necessary steps to return service papers to the Clerk of Court and to complete service
on remaining Defendants. Doc. 21 (citing Fed. R. Civ. P. 4(m) and LCvR4.2). The Court
ordered Plaintiff to show cause not later than October 3, 2025, and warned Plaintiff that
failure to do so may result in dismissal of this action without prejudice. Id.
On October 14, 2025, the Court received a letter from Plaintiff that it construed as
Plaintiff’s attempt to comply with the Court’s order to show cause. Doc. 22. Plaintiff
asserted that he had “been in seg” and was “trying to obtain a lawyer.” Id. (spelling and
capitalization altered). Plaintiff provided no details about how much time he had “been in
seg” or any efforts he made to effect service before, during, or after his time “in seg.” See
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id. Plaintiff asserted that he had “no excuses for being late,” but requested additional time.
Id. On October 17, 2025, the Court determined Plaintiff had not provided good cause for
failure to serve, but nonetheless granted Plaintiff a permissive extension of time for service.
Doc. 23 (citing Espinoza v. United States, 52 F.3d 838, 842 (10th Cir. 1995)). The Court
ordered Plaintiff to complete and return to the Clerk of Court the service papers not later
than November 7, 2025, and to complete service not later than January 6, 2026. Id.
A review of the docket indicates that, to date, Plaintiff has not returned service
papers to the Clerk of Court, filed either proof of service or waiver of service, sought
additional time to complete service, or shown cause for his failure to serve the remaining
Defendants.
Notwithstanding Plaintiff’s failure to show good cause, the Court again considers
whether “a permissive extension of time may be warranted.” Espinoza, 52 F.3d at 841. In
doing so, the Court considers “whether the statute of limitations would bar the plaintiff
from refiling the action, whether the plaintiff has unsuccessfully attempted to serve the
United States, and whether the delay in service relates to the plaintiff’s pro se status or
confusion or delay in obtaining permission to proceed in forma pauperis.” Johnson v.
Harris, No. CIV-23-513-SLP, 2024 WL 3857342, at *1 (W.D. Okla. Aug. 16, 2024) (citing
Espinoza, 52 F.3d at 842 & n.8).
Here, the United States is not a Defendant in this action, and there is no indication
in the record of substantial delay due to Plaintiff’s pro se or IFP status. Though Plaintiff
claimed in October 2025 that he was “trying to obtain a lawyer,” Doc. 22, he has had more
than three months since then to take steps toward service. Further, in June 2025, the Clerk
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of Court had notified Plaintiff of deficiencies with earlier service papers and instructed him
on how to properly complete the service papers.
Additionally, it does not appear that a two-year statute of limitations applicable to
Plaintiff’s claims would bar him from refiling the action should he choose to do so. See
Stillwell v. Neely, No. CIV-24-482-D, 2024 WL 4437140, at *2 n.2 (W.D. Okla. Oct. 7,
2024) (“A two-year statute of limitations governs Plaintiff’s § 1983 claim.”); see also Price
v. Philpot, 420 F.3d 1158, 1162 (10th Cir. 2005) (explaining that Oklahoma’s two-year
statute of limitations applies to a civil rights action brought under § 1983). Plaintiff
initiated this action on August 9, 2024, and he alleges events underlying his suit began on
or around March 15, 2024. Doc. 1-1 at 2.
Having considered these factors, the undersigned recommends that the Court
dismiss this action without prejudice based on Plaintiff’s failure to serve the remaining
Defendants. See, e.g., Frederick v. Hamilton, No. CIV-24-847-SLP, 2025 WL 3899858,
at *2 (W.D. Okla. Dec. 5, 2025) (recommending dismissal without prejudice when plaintiff
did not establish good cause for failure to complete service and a permissive extension was
not warranted) (R&R), adopted, 2026 WL 41330 (W.D. Okla. Jan. 6, 2026); Brewer v.
White, No. CIV-24-469-G, 2025 WL 567027, at *3 (W.D. Okla. Jan. 10, 2025) (same)
(R&R), adopted, 2025 WL 565027 (W.D. Okla. Feb. 20, 2025).
II. Recommendation and Notice of Right to Object
For the foregoing reasons, the undersigned recommends that the Court DISMISS
the action without prejudice. Plaintiff is advised of his right to object to this Report and
Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of
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Court not later than February 11, 2026. See id. § 636(b)(1); Fed. R. Civ. P. 72(b)(2).
Failure to object timely waives the right to appellate review of the factual and legal issues
addressed in this Report and Recommendation. See Moore v. United States, 950 F.2d 656,
659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned
Magistrate Judge in this matter.
ENTERED this 22nd day of January, 2026.
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