Arnett v. Gabriel et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
GLEN DELANE ARNETT JR., )
)
Plaintiff, )
)
v. ) Case No. CIV-24-185-SLP
)
MAJOR PHILLIP GABRIEL et al., )
)
Defendants. )
REPORT AND RECOMMENDATION
Plaintiff Glen Delane Arnett Jr., appearing
pro se and
in forma pauperis, filed an
Amended Complaint (AC) under 42 U.S.C. § 1983, alleging various civil rights violations.
(ECF No. 8). Defendants Gabriel, Hamilton, Hagen, and Peek have filed a Motion to
Dismiss and Defendant Amason has also filed a Motion to Dismiss.
See ECF Nos. 34 & 36.
Plaintiff filed a response and Defendants replied. (ECF Nos. 37, 38 & 39).
I. REMAINING CLAIMS AND DEFENDANTS
Following an initial review of the AC, the following claims and Defendants
remained: (1) Claim One as set forth in the AC for retaliation in violation of the First
Amendment against Defendant Gabriel; (2) Claim Three as set forth in the AC alleging a
violation of Equal Protection against Defendants Hamilton and Hagen; (3) Claim Nine as
set forth in the AC alleging a violation of Plaintiff’s right to free exercise of religion against
Defendants Peek, Hagan, and Amason, and (4) Claim Eleven as set forth in the AC alleging
a violation of Plaintiff’s right to free exercise of religion against Defendants Peek, Hagan,
and Amason. (ECF No. 18:6). These claims remained against the Defendants in their
individual capacities for monetary relief and their official capacities for injunctive relief.
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Subsequently, the undersigned recommended dismissal of the official capacity claims
against the remaining Defendants.
See ECF No. 42.
II. DEFENDANTS’ MOTION TO DISMISS
Defendants Gabriel, Hamilton, Hagen, Peek, and Amason, in their individual
capacities, have filed Motions to Dismiss under Federal Rule of Civil Procedure 12(b)(5),
arguing, in part, dismissal owing to lack of timely or proper service.
See ECF Nos. 34 &
36.1 Following a review of the motions, the Court should: (1) find the attempted service
timely, (2) quash the original service attempt on Defendants Gabriel, Hamilton, Hagen,
Peek, and Amason in their individual capacities, and (3) allow Mr. Arnett 30 days to
effectuate proper service on these Defendants in their individual capacities or risk
dismissal of the remaining claims.
A. Plaintiff’s Attempted Service was Timely
Plaintiff attempted service on the Defendants utilizing a United States Marshal who
apparently dropped packets of information containing a copy of the summons and the AC
for each of the Defendants, with an individual named “Marcy Davis” who was “working
the front desk” at the Cleveland County Detention Center.
See ECF Nos. 31, 34:14, 36:16.
Defendants take issue with the attempted service as untimely. (ECF Nos. 34:12-13,
36:13-14). The Court should find otherwise.
1 The Defendants also argue: (1) they are entitled to qualified immunity, (2) Plaintiff failed to
exhaust his administrative remedies as required by the Prison Litigation Reform Act (PLRA) and
(3) the PLRA prohibits an award of monetary damages for emotional distress.
See ECF Nos. 34:14-
30, 36:15-29. But these arguments do not bear on whether Plaintiff has effectuated proper
service, a jurisdictional prerequisite which must be established prior to addressing the substance
of Plaintiff’s claims. Accordingly, the Court need not address these arguments at this time.
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In support of their argument, Defendants state: “According to this Court’s Order
to Show Cause (Doc. 25), Plaintiff’s last day to obtain timely service upon Defendants
was December 26, 2025. (Doc. 25, n.1).” (ECF No. 34:13, 36:13-14). Defendants argue
that dismissal is appropriate because Plaintiff waited until February 17, 2026 to attempt
service, which was 53 days late. (ECF Nos. 34:13, 36:14). The Court should disagree.
Defendants correctly cite ECF No. 25, wherein the undersigned stated that
“Plaintiff’s last date to obtain timely service on defendant [wa]s December 26, 2025.”
(ECF No. 25:2, n.1). However, Plaintiff was given until January 5, 2026 to show cause in
writing why he had not submitted the required service paperwork or filed proof that
service has been obtained on any Defendant.
See ECF No. 25. On January 29, 2026, the
undersigned found that Plaintiff had shown good cause and stated that “The Clerk of
Court shall complete the process to issue the summons and deliver said paperwork to the
United States Marshal Service (USMS). Such service will be accomplished by the Court
through the USMS as detailed in the Court’s previous Order.
See ECF No. 20.” (ECF No.
29:2). In ECF No. 20, the undersigned had noted that “Because Plaintiff’s Complaint was
subject to initial screening under 42 U.S.C. § 1997e(c)(1) and 28 U.S.C. § 1915(e)(2)(B),
the Court has postponed commencement of the 90-day period for service of Defendants
until the date of this Order.” (ECF No. 20:6, n.4). Thus, the 90-day period for
commencement of service began January 30, 2026, the day following the Court’s order
finding that Mr. Arnett had shown good cause for failure to serve and ordering compliance
with service as set forth in ECF No. 20. Plaintiff’s attempt at service occurred on February
11, 2026,
see ECF No. 31, which was, therefore, timely.
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B. Plaintiff’s Attempted Service was Improper
Next, Defendants argue that Plaintiff’s attempt to serve them in their individual
capacities was improper, as not in compliance with Federal Rule of Civil Procedure
4(e)(2). (ECF No. 34:13-14, 36:14-15). The Court should find that dismissal is not
appropriate, but the Court should quash the original service attempt and allow Plaintiff
an opportunity to effectuate proper service on these Defendants.
Personal service under Rule 4 of the Federal Rules of Civil Procedure “notif[ies] a
defendant of the commencement of an action against him.”
Okla. Radio Assocs. v. Fed.
Deposit Ins. Corp., 969 F.2d 940, 943 (10th Cir. 1992). Further, such service “provides
the mechanism” for the court to “assert[ ] jurisdiction over the person of the party
served.”
Id.;
see also Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344,
350-51 (1999). A Rule 12(b)(5) motion challenges the plaintiff’s mode of serving process
on the moving party.
Craig v. City of Hobart, No. CIV-09-53-C, 2010 WL 680857, at *1
(W.D. Okla. Feb. 24, 2010) (citing 5B Charles A. Wright & Arthur R. Miller, Federal Practice
& Procedure § 1353 (3d ed. 2004)). In opposing a Rule 12(b)(5) motion, the plaintiff
bears the burden of showing that he or she “complied with all statutory and due process
requirements.”
Id. “Motions under Federal Rules 12(b)(4) and 12(b)(5) differ from the
other motions permitted by Rule 12(b) somewhat in that they offer the district court a
course of action—quashing the process without dismissing the action—other than simply
dismissing the case when the defendant’s defense or objection is sustained.” 5B Wright
& Miller, supra, § 1354;
accord Gray v. Ritter, No. CIV-09-909-F, 2010 WL 4880890, at
*2 (W.D. Okla. Oct. 8, 2010).
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Pursuant to Federal Rule of Civil Procedure 4(e), service may be made upon an
individual within 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).
Under Rule 4(e)(1), Oklahoma relies on a three-part test regarding sufficiency of
service of process: “ ‘(1) Is there a statute authorizing the method of service employed?;
(2) Have the requirements of the statute been observed?; and (3) Have fundamental due
process requirements been met?’ ”
Hukill v. Okla. Native Am. Domestic Violence Coal.,
542 F.3d 794, 799 (10th Cir. 2008) (citation omitted). Under the first prong, service of
process in Oklahoma is governed by OKLA. STAT. tit. 12, § 2004. For service by personal
delivery upon an individual, Oklahoma law provides that service shall be made as follows:
upon an individual other than an infant who is less than fifteen (15) years
of age or an incompetent person, by delivering a copy of the summons and
of the petition personally or by leaving copies thereof at the person’s
dwelling house or usual place of abode with some person then residing
therein who is fifteen (15) years of age or older, by delivering a copy of the
summons and of the petition to an agent authorized by appointment or by
law to receive service of process, or by delivering a copy of the summons
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and of the petition personally or by leaving copies thereof at an agreed
meeting place with some person then residing at the person’s dwelling
house or usual place of abode[.]
12 O.S. § 2004(C)(1)(c)(1). The inquiry thus turns to whether Mr. Arnett observed the
requirements of 12 O.S. § 2004 or Federal Rule of Civil Procedure 4(e)(2) when serving
the remaining five Defendants in their individual capacities. Here, Plaintiff attempted
service of the summons and AC with an individual who was working the front desk at the
Cleveland County Detention Center on February 11, 2026.
See ECF No. 31. The Court
should find that the attempted service was not in compliance with either state or federal
rules.
Motions under Rule 12(b)(5) offer the district court the option of quashing the
improper service of process without dismissing the action.
See Pendleton v. Bd. of Cnty.
Commissioners for Okla. Cnty., No. CIV-18-707-G, 2019 WL 4752269, at *2 (W.D. Okla.
Sept. 30, 2019);
accord Gray v. Ritter, No. CIV-09-909-F, 2010 WL 4880890, at *2 (W.D.
Okla. Oct. 8, 2010);
Lasky v. Lansford, 76 F. App’x 240, 241 (10th Cir. 2003); 5B Charles
A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1354 (3d ed. 2010). Here,
there is no indication that Plaintiff cannot properly serve the individual Defendants. Thus,
the Court should quash the original service, and Plaintiff should effectuate proper service
on these Defendants within thirty (30) days of this Order. If Plaintiff fails to effectuate
service within this period, this case will be dismissed without prejudice as to these
defendants.
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III. DEFENDANTS’ REMAINING ARGUMENTS
At this time, and because of the pending service matter, the Court should abstain
from making any finding on Defendants’ arguments that they are entitled to qualified
immunity, that Plaintiff has failed to exhaust his administrative remedies, or that Mr.
Arnett is not entitled to damages for emotional distress.
See supra, n. 1. If, in the future,
Mr. Arnett effects proper service, Defendants will be allowed to present their arguments
again.
The undersigned takes note of Defendants’ Proposition III, titled: “Plaintiff’s Failure
to Comply with the PLRA Warrants Dismissal.”
See ECF No. 34:26, 36:25. In this
proposition, Defendants argue that Plaintiff’s Amended Complaint fails to allege that he
exhausted his administrative remedies.” (ECF Nos. 34:27, 36:26). Defendants correctly
cite the PLRA and related law which mandates exhaustion of administrative remedies for
all inmates seeking relief under 42 U.S.C. § 1983 in federal court.
See ECF Nos. 34:27,
36:26;
see 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison
conditions under section 1983 of this title, or any other Federal law, by a prisoner confined
in any jail, prison, or other correctional facility until such administrative remedies as are
available are exhausted.”). However, nearly twenty years ago, in
Jones v. Bock, 549 U.S.
199, 216 (2007), the United States Supreme Court explicitly held that “failure to exhaust
[administrative remedies] is an affirmative defense under the PLRA. . . inmates are not
required to specially plead or demonstrate exhaustion in their complaints.”
Thus, the Defendants are not entitled to dismissal on the issue of non-exhaustion,
because Mr. Arnett was not required to allege the same in the AC.
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If in fact, Mr. Arnett effectuates proper service on the Defendants, a special report
and answer or dispositive motion would be due in accordance with the guidelines set
forth in ECF No. 20. Regarding the issue of exhaustion, the undersigned directs
Defendants’ attention to page 3, subsection (4) which states:
Defendants are advised that filing a dispositive motion based on the
affirmative defense of failure to exhaust administrative remedies will
typically be considered as a motion for summary judgment. Thus, such a
motion generally must be in compliance with procedural rules for summary
judgment. See Fed. R. Civ. P. 56; LCvR 56.1; see also LCvR 56.1(a) (limiting
each party to one Rule 56 motion, absent leave of Court).
Mere allegations that Plaintiff failed to exhaust his administrative remedies, as set forth
in Defendants’ current motions, would be insufficient.
IV. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based on the foregoing, the Court should: (1) deny the Motions to Dismiss to the
extent they seek dismissal of the action due to untimely and improper service; (2) quash
the original service attempt on Defendants Gabriel, Hamilton, Hagen, Peek, and Amason
in their individual capacities; and (3) allow Mr. Arnett 30 days to effectuate proper service
on these Defendants in their individual capacities or risk dismissal of the claims against
them.
The parties are hereby advised of their right to object to this Report and
Recommendation.
See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the
District Court by May 18, 2026.
See 28 U.S.C. § 636(b)(1); and Fed. R. Civ. P. 72(b)(2).
Failure to make timely objection to this Report and Recommendation waives the right to
appellate review of both factual and legal questions contained herein.
Casanova v.
Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
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V. STATUS OF THE REFERRAL
This Report and Recommendation does not terminate the referral to the
undersigned magistrate judge in the captioned matter.
ENTERED on April 30, 2026.
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