United States District Court, D. New Mexico
Bernest Benjamin Los Lunas, New Mexico Plaintiff pro se.
L. Vincent New Mexico Corrections Department Santa Fe, New
Mexico Attorney for the Defendants.
MEMORANDUM OPINION AND ORDER DENYING THE
PLAINTIFF'S POST-JUDGMENT MOTIONS
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.
THE COURT WILL DENY THE CLAIMS AGAINST
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.
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”).
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.
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”).
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”).
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
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).
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).
case, Benjamin does not show good cause why he failed to
serve Jackson. Judge Vidmar gave him multiple chances to
serve Jackson. No ...