McIntyre v. Naphcare, Inc.

DWIGHT McINTYRE, Plaintiff, v. NAPHCARE, INC., et al., Defendants.

Case No. 2:16-cv-02107-JCM-PAL

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

October 19, 2018

REPORT OF FINDINGS AND RECOMMENDATION

(Req. Waive Service - ECF No. 17)

This matter is before the court on Plaintiff Dwight McIntyre's failure to serve the defendants and Request for Waiver of Service (ECF No. 17). This Request is referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and LR IB 1-4 of the Local Rules of Practice.

BACKGROUND

Mr. McIntyre is a prisoner in the custody of the Nevada Department of Corrections ("NDOC") at the Southern Desert Correctional Center. He is proceeding in this action pro se and in forma pauperis ("IFP"). This case arises from McIntyre's allegations, pursuant to 42 U.S.C. § 1983, that defendants violated his civil rights. Mr. McIntyre commenced this action on September 6, 2016, by filing an IFP Application (ECF No. 1) and proposed complaint. Upon review of the complaint, the court determined that it stated one plausible claim for deliberate indifference to serious medical need in violation of the Eighth Amendment against defendants Drs. Frank Ryan, Brian Poirier, and Ted Hanf. Screening Order (ECF No. 4); Complaint (ECF No. 5).

The court stayed the case for 90 days to allow the parties an opportunity to settle their dispute through the Inmate Early Mediation Program before the filing of an answer or starting the discovery process. Aug. 24, 2017 Order (ECF No. 6). The court directed electronic service of the complaint on the Nevada Office of the Attorney General ("Attorney General") and instructed that the Attorney General advise the court whether it would enter a limited notice of appearance of behalf of the defendants for the purpose of settlement. Id. The Attorney General notified the court and Mr. McIntyre that no current employees of NDOC were named as defendants and the Attorney General was not authorized to enter a limited notice of appearance in this matter. Sept. 12, 2017 Notice (ECF No. 7).

In light of the Attorney General's notice, the court ordered the Attorney General to send letters to Drs. Ryan, Poirier, and Hanf at their last known addresses informing them that they are defendants in this lawsuit and asking whether the doctors wanted the Attorney General to represent them in this case. Sept. 26, 2018 Order (ECF No. 8). The court further ordered the Attorney General to file an updated notice informing the court whether it will be entering a limited notice of appearance on behalf of the doctors for the purpose of settlement based on any response to the letters. Id. If no limited appearance would be made, the court stated it would (1) remove this case from the early inmate mediation program, (2) rule on the IFP application, and (3) begin the service process with the U.S. Marshal Service ("USM"). Id.

On September 27, 2017, the Attorney General informed the court that it sent a letter regarding this lawsuit to Dr. Hanf, a former NDOC medical provider, at his last known address. Notice (ECF No. 9). The correspondence was returned to the Attorney General "not deliverable as addressed, unable to forward." Id. Counsel also advised the court he had contacted NDOC staff regarding Drs. Ryan or Poirier and was informed that neither of the doctors had a current or former employment relationship with NDOC. Id. Thus, the Attorney General did not have last known contact information for Drs. Ryan or Poirier. Id.

On October 17, 2017, the court entered an Order (ECF No. 10) ("Service Order") removing this case from the inmate mediation program and returning the case to the normal litigation track. As such, the court ordered that "service must be perfected within ninety (90) days from the date of this order pursuant to Fed. R. Civ. P. 4(m)." Id. at 2:6-7 (emphasis added).¹ Summons were issued for Defendants Ryan, Poirier, and Hanf and delivered to the USM for service. The Clerk of Court was instructed to send Mr. McIntyre three USM-285 forms. McIntyre was ordered to mail the USM the required USM-285 forms with the relevant information as to each defendant oneach form. Within 20 days after receiving the process receipt and return portion of the USM-285 forms from the USM showing whether service has been accomplished, McIntyre was ordered to file a notice with the court identifying which defendant(s) were served and which were not served, if any. Mr. McIntyre was specifically ordered, if any service attempt was unsuccessful and he "wishes to have service again attempted on an unserved Defendant(s), then a motion must be filed with the Court identifying the unserved Defendant(s) and specifying a more detailed name and/or address for said Defendant(s), or whether some other manner of service should be attempted." Id. at 2:17-20 (emphasis added). Lastly, the Service Order instructed the Attorney General to file under seal "the last known address(es) of those Defendant(s) for whom it has such information." Id. at 2:22-23.

On October 23, 2017, the Attorney General filed under seal the last known address for Dr. Hanf. Sealed Notice (ECF No. 12). The Attorney General provided notice to Mr. McIntyre of the sealed submission and further informed him that it had no information to submit concerning the last known addresses of Drs. Frank Ryan or Brian Poirier. Notice (ECF No. 13).

After the Service Order was entered, this case stayed dormant for 111 days. Because Mr. McIntyre did not timely file proof of service, the clerk's office issued a standard notice of intent to dismiss pursuant to Rule 4(m) of the Federal Rules of Civil Procedure on February 6, 2018.² Notice (ECF No. 14) ("4(m) Notice"). The 4(m) Notice stated that the case may be dismissed without prejudice as to defendants Ryan, Poirier, and Hanf unless proof of service was filed with the clerk by March 8, 2018. The 4(m) Notice further informed McIntyre that service must have taken place prior to the expiration of the 90-day time limit, or good cause must be shown as to why such service was not made in that period. Mr. McIntyre was warned: "Failure to comply with this notice may result in dismissal of the action without prejudice as to said parties." Id.

Mr. McIntyre filed a Response (ECF No. 15) to the 4(m) Notice on February 14, 2018, stating that he had incorrectly mailed the USM-285 forms to the court in November 2017 "with the requested information to serve all named defendants," rather than the USM. Thus, he would send the USM the USM-285 forms to serve all named defendants.

On March 16, 2018, summons were returned unexecuted for Dr. Hanf. ECF No. 16. Using the last known address the Attorney General submitted under seal for Dr. Hanf, the USM was unable to complete service of process. Notice of the summons returned unexecuted was served on Mr. McIntyre at the Southern Desert Correctional Center via the U.S. Postal Service.

Thereafter, this case went dormant for nearly seven more months. On October 15, 2108, McIntyre filed a Request for Waiver of Service (ECF No. 17). Mr. McIntyre states that he has been unable to complete service of the named defendants through the USM because of the confidentiality of the defendants' residence or place of work. He states he has completed a "summons and service to Napecare's (sic) counsel of records, who has received and returned 'certified mail'," and he attaches a certified mail receipt to Alverson Taylor Mortensen and Sanders. McIntyre requests unspecified "assistance from this Court" or "notice of waiver of service."

DISCUSSION

I. LEGAL STANDARDS

Although pro se parties are generally held to less stringent standards, "pro se litigants in the ordinary civil case should not be treated more favorably than parties with attorneys of record." Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986). It is a plaintiff's responsibility to move the case toward disposition on the merits, In re Exxon Valdez, 102 F.3d 429, 433 (9th Cir. 1996), and a pro se litigant must follow the same rules of procedure that govern other litigants. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1986); Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) (noting that "pro se litigants are bound by the rules of procedure").

Rule 4 governs service of process. "Service of process" is a formal delivery of documents that is legally sufficient give a defendant notice of a pending action. R. Griggs Group Ltd. v. Filanto Spa, 920 F. Supp. 1100, 1103 (D. Nev. 1996) (citing Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988)); Charles A. Wright & Arthur R. Miller, 4A Federal Practice & Procedure, Civil § 1094 (4th ed. 2015) (noting that the purpose of service is to give a defendant notice of the proceedings). Federal courts lack personal jurisdiction over a defendant unless the defendant has been properly served in accordance with Rule 4. Crowley v. Bannister, 734 F.3d967, 974-75 (9th Cir. 2013). Thus, strict compliance with the rules governing manner of service is required. Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347 (1999).

Rule 4 states that a defendant must be served within 90 days after a complaint is filed. Fed. R. Civ. P. 4(m). A court may dismiss an action without prejudice if the summons and complaint are not timely served on a defendant. Id.; see also Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007). However, Rule 4(m) requires the court to extend the time for service if a plaintiff shows good cause for the failure to timely serve. Id. As a general matter, a showing of good cause requires more than simple inadvertence, mistake, or ignorance of the procedural rules. Martin v. Longbeach, 246 F.3d 674 (9th Cir. 2000). "At a minimum, good cause means excusable neglect." Id. "'Ignorance of court rules does not constitute excusable neglect, even if the litigant appears pro se'." Kocsis v. Delta Air Lines, Inc., 963 F. Supp. 2d 1002, 1011 (D. Haw. 2013) (quoting Swimmer v. IRS, 811 F.2d 1343, 1345 (9th Cir. 1987)). A...