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Benjamin v. Jackson

United States District Court, D. New Mexico

August 22, 2017


          Bernest Benjamin Los Lunas, New Mexico Plaintiff pro se.

          Nancy L. Vincent New Mexico Corrections Department Santa Fe, New Mexico Attorney for the Defendants.


         THIS MATTER comes before the Court on: (i) the Plaintiff's Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915, filed September 21, 2016 (Doc. 65)(“§ 1915 Motion”); (ii) the Plaintiff's Motion to Amend or Make Additional Factual Findings and/or to Alter or Amend the Judgment, filed September 21, 2016 (Doc. 66)(“Motion to Find Facts”); (iii) the Plaintiff's Motion to or for Leave to Amend Pleading with Pleading in Rule 59 and 52(b) filed September 18, 2016, filed October 3, 2016 (Doc. 67)(“Motion to Amend”); and (iv) the Plaintiff's Motion to Stay Pending Disposition of Motions, filed October 3, 2016 (Doc. 68)(“Motion to Stay”). Plaintiff Bernest Benjamin filed the § 1915 Motion, the Motion to Find Facts, the Motion to Amend, and the Motion to Stay after the Court entered its Final Judgment, filed August 31, 2016 (Doc. 60)(“Final Judgment”). Benjamin waived his objections to the Magistrate Judge's Proposed Findings and Recommended Disposition, filed June 16, 2016 (Doc.B 48)(“PF&RD”), and he does not show good cause for his failure to timely serve Defendant James Jackson. The Court will deny the post-judgment motions.


         Benjamin initiated this lawsuit on August 28, 2014. See Prisoner's Civil Rights Complaint at 1, filed August 28, 2014 (Doc. 1)(“Complaint”). He paid the full filing fee and did not proceed in forma pauperis (“IFP”). See Notice of Payment of Filing Fee, dated September 11, 2014 (Doc. 4). Benjamin was aware in August of 2015 that Jackson had still not been served, and he wrote a letter asking for guidance on effecting service. See Letter at 1, filed August 10, 2015 (Doc. 10)(“First Letter”). The Honorable Judge Stephan Vidmar, United States Magistrate Judge for the District of New Mexico, ordered Defendants Michael Hohman and Lawrence Artiaga to diligently search for Jackson's address. See Order to Submit Martinez Report at 3, filed September 23, 2015 (Doc. 16)(“Martinez Order”). Once they produced an address, he ordered the Clerk to send a waiver-of-service form to Jackson. See Redacted Order at 1, filed September 25, 2015 (Doc. 17)(“Redacted Order”). Jackson did not, however, waive service.

         On November 25, 2015, therefore, Judge Vidmar construed Benjamin's August 2015 First Letter as a motion for limited discovery. See Order for Limited Discovery at 1, filed November 25, 2015 (Doc. 20)(“Discovery Order”). He granted it, and ordered Hohman and Artiaga to produce Jackson's address to Benjamin so that Benjamin could arrange for service. See Discovery Order at 1. In November of 2015, Benjamin knew that he was responsible for serving Jackson and that the Court could not serve him, because Benjamin was not proceeding IFP. See Discovery Order at 1 n.1. On January 25, 2016, Benjamin requested a summons for Jackson “so [he could] have him served.” Letter at 1, filed January 25, 2016 (Doc. 29)(“Second Letter”). The summons was issued and mailed to Benjamin the next day. Nevertheless, by June 16, 2016, there was no evidence on the record that Jackson had been served, and Judge Vidmar ordered Benjamin to show good cause no later than July 7, 2016, why his claims against Jackson should not be dismissed for lack of service under rule 4(m) of the Federal Rules of Civil Procedure. See Order to Show Cause at 1, filed June 16, 2016 (Doc. 49)(“Order to Show Cause”).

         Benjamin did not respond to the Order to Show Cause until after the deadline had passed. Benjamin's motion for extension of time was signed on July 8, 2016, one day after the deadline. Even though the motion was clearly late, Judge Vidmar granted it. See Order Granting Plaintiff's Motion for Extension of Time at 2, filed July 11, 2016 (Doc. 51)(“Extension Order”). Judge Vidmar gave Benjamin until July 28, 2016, to show cause why the claims against Jackson should not be dismissed for lack of service. Extension Order at 2. Judge Vidmar warned Benjamin, however, that he would “be required to show good cause for any further requests for extension of time, and any such request must be filed prior to the corresponding deadline.” Extension Order at 2. Still, Benjamin did not respond by the extended deadline of July 28, 2016.

         It was not until August 18, 2016 -- three weeks after the extended deadline passed -- that Benjamin mailed another motion for extension of time to show cause why his claims against Jackson should not be dismissed. See Motion to Extend Time at 1, filed August 24, 2016 (Doc. 55)(“Motion to Extend”). The Court dismissed Jackson without prejudice under rule 4(m) on August 31, 2016. See Memorandum Opinion and Order of Dismissal at 1, filed August 31, 2016)(Doc. 59)(“Dismissal MOO”).

         After the Court entered its Final Judgment on August 31, 2016, Benjamin submitted numerous filings. He urges the Court to vacate its Final Judgment and give him more time. He requests that the Court reopen the case and permit him leave to proceed IFP, presumably so that the Court will serve Jackson. Cf. Motion to Extend at 1; Response to Order to Show Cause at 1-2, filed September 2, 2016 (Doc. 61)(“Response”); § 1915 Motion at 1-3; Motion to Stay at 1. Benjamin explains that he tried to serve Jackson “by certified mail through his cellmate at the Lea County Correctional facility.” Response at 1. Benjamin asks the Court to order the mailroom staff at the jail to “give the Court the mailing of [the] certified mailing.” Response at 1. Benjamin also reports that he cannot afford to serve Jackson. See Motion to Extend at 1; Motion to Extend Time to File Objections to Proposed Findings and Recommended Disposition at 1, filed August 24, 2016 (Doc 56)(“PFRD Motion to Extend”).

         Rule 4(m) provides that, where a plaintiff shows good cause for missing the service-of-process deadline, “the court must extend the time for service for an appropriate period.” Fed.R.Civ.P. 4(m). When this provision is invoked,

district courts should proceed . . . in the following manner: The preliminary inquiry to be made under Rule 4(m) is whether the plaintiff has shown good cause for the failure to timely effect service. . . . If good cause is shown, the plaintiff is entitled to a mandatory extension of time. If the plaintiff fails to show good cause, the district court must still consider whether a permissive extension of time may be warranted. At that point the district court may in its discretion either dismiss the case without prejudice or extend the time for service.

Espinoza v. United States, 52 F.3d 838, 841 (10th Cir. 1995). Accord Sanders v. Sw. Bell Tel., L.P., 544 F.3d 1101, 1111 (10th Cir. 2008).

         In some circumstances, “good cause exists to excuse a plaintiff's failure to serve where the plaintiff is proceeding [IFP] and is therefore entitled to rely on service by the [Marshals].” Olsen v. Mapes, 333 F.3d 1199, 1204 (10th Cir. 2003). United States Court of Appeals for the Tenth Circuit cases have established some of the contours between justifiable reliance on the process server -- whether it be the Marshals, a privately retained third party, or a pro se litigant himself -- and unjustifiable reliance, and they have set a high bar for a plaintiff endeavoring to show the former. For instance, the Tenth Circuit has discerned no abuse of discretion where a district court dismissed a complaint after the pro se plaintiff asserted he had mailed the summons in a timely fashion but failed to timely effectuate it. See Espinoza v. United States, 52 F.3d at 841. The Tenth Circuit has likewise discounted an attorney's misinterpretation of rule 4 as a reason to find good cause, and has deemed irrelevant that no prejudice inured to the defendants from the lateness or the fact that the statute of limitations expired before dismissal. See Despain v. Salt Lake Area Metro Gang Unit, 13 F.3d 1436, 1439 (10th Cir. 1994). In addition, the Tenth Circuit has made clear that an attorney's failure to monitor a hired process server and ensure timely service does not constitute good cause. See Cox v. Sandia Corp., 941 F.2d 1124, 1125-26 (10th Cir. 1991). Last, as a general matter, the Tenth Circuit has explained in the pro se context that “inadvertence or negligence alone do not constitute ‘good cause' for failure of timely service.” In re Kirkland, 86 F.3d 172, 176 (10th Cir. 1996).

         In this case, Benjamin does not show good cause why he failed to serve Jackson. Judge Vidmar gave him multiple chances to serve Jackson. No ...

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