Campbell #043669 v. Unknown Parties et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Ricky Lee Campbell,
Plaintiff,
v.
Unknown Parties, et al.,
Defendants.
No. CV-24-01797-PHX-JAT (JZB)
REPORT AND RECOMMENDATION
TO THE HONORABLE JAMES A. TEILBORG, SENIOR UNITED STATES
DISTRICT JUDGE:
This matter is before the Court upon its own review.1 Because Plaintiff has failed to
timely serve Defendant Unknown Officer #1, the Court recommends that Defendant
Unknown Officer #1 be dismissed without prejudice pursuant to Rule 4(m) of the Federal
Rules of Civil Procedure.
I. Background.
On July 22, 2024, pro se Plaintiff Campbell, who is confined in the Arizona State
Prison Complex (ASPC)-Tucson and is proceeding in forma pauperis, filed a prisoner civil
rights Complaint pursuant to 42 U.S.C. § 1983. (Doc. 1.) In an October 8, 2024 Order, the
Court determined that Plaintiff stated an Eighth Amendment threat-to-safety claim against
Defendant Unknown Officer #1 and an Eighth Amendment medical care claim against
Defendants Unknown Nurses #1 and #2. (Doc. 9.) The Court gave Plaintiff 120 days to
1 This action was referred to this Court on August 28, 2025. (Doc. 27 at 7.)
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discover the actual name of one or more of the Unknown Defendants, through subpoena or
otherwise, and to substitute at least one of the Defendants’ actual names by filing a “notice
of substitution.” (Id.) The Court included three subpoenas in blank with the Order. (Id.)
On October 23, 2024, Plaintiff returned to the Clerk of Court a completed subpoena
directed to Ryan Thornell. (Doc. 11.) On November 6, 2024, the United States Marshal’s
Service served the subpoena on Thornell. (Doc. 12.) On December 17, 2024, Plaintiff
returned to the Clerk of Court another subpoena directed to Ryan Thornell, (doc. 14), which
the Clerk of Court did not forward to the United States Marshal’s Service, although the
subpoena included a list of documents sought by Plaintiff that he had not requested in the
served subpoena. Plaintiff never filed a motion to enforce the served subpoena or a notice
of substitution, and Thornell never filed a motion to quash.
In a February 26, 2025 Order, the Court set forth the above procedural history and
ordered Plaintiff to show cause within 30 days why this case should not be dismissed for
failure to prosecute. (Doc. 16.) On March 19, 2025, Plaintiff filed a Response to the Order
to Show Cause. (Doc. 17.)
In an April 2, 2025 Order, the Court determined that the December 17, 2024
subpoena should have been served on Ryan Thornell and concluded that this case should
not be dismissed for failure to prosecute at that time. (Doc. 18.) The Court directed the
Clerk of Court to forward Plaintiff’s December 17, 2024 subpoena and a copy of the Order
to the United States Marshal’s Service for service on Ryan Thornell. (Id.) The Court
directed Thornell, within 30 days of service of the subpoena, to either produce information
in response to the subpoena and file a notice to the Court stating how and when he produced
information in response to the subpoena or file a motion to quash the subpoena. (Id.)
Subsequently, the Court granted Thornell’s Motion for Extension of Time to
respond to the December 17, 2024 subpoena, (doc. 20), and Thornell filed a Notice
indicating that the Parties had agreed to extend the deadline for Thornell to respond to the
subpoena to June 30, 2025. (Doc. 22.) On June 24, 2025, Plaintiff filed a Notice, (doc. 24),
and on June 25, 2025, Thornell filed a Notice of Service of Records Responsive to
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Plaintiff’s December 17, 2024 Subpoena.2 (Doc. 23.)
Since Thornell filed the Notice of Service of Records Responsive to Plaintiff’s
December 17, 2024 Subpoena, 169 days have passed without Plaintiff attempting to serve
Defendant Unknown Officer #1. See (doc. 23.) Since the District Court’s August 28, 2025
Order, 105 days have passed without any attempt by Plaintiff to serve Defendant Unknown
Officer #1—well beyond the 60 days permitted in the order. See (doc. 27.)
II. Legal Standard.
Rule 16.2(b)(2)(B) of the Local Rules of Civil Procedure, which governs prisoner
civil rights suits, provides that service shall be completed by the maximum date to effect
service under Rule 4(m), “or sixty (60) days from filing of the service order, whichever is
later.” The applicable version of Rule 4(m) of the Federal Rules of Civil Procedure requires
that:
If a defendant is not served within 90 days after the complaint is filed, the
court—on motion or on its own after notice to the plaintiff—must dismiss
the action without prejudice against that defendant or order that service be
made within a specified time. But if the plaintiff shows good cause for the
failure, the court must extend the time for service for an appropriate period.
Fed. R. Civ. P. 4(m).
Good cause to avoid dismissal may be demonstrated by establishing, at
minimum, excusable neglect. See Boudette v. Barnette, 923 F.2d 754, 756
(9th Cir. 1991). In addition to excusable neglect, a plaintiff may be required
to show the following factors to bring the excuse to the level of good cause:
“(a) the party to be served personally received actual notice of the lawsuit;
(b) the defendant would suffer no prejudice; and (c) plaintiff would be
severely prejudiced if his complaint were dismissed.” Id.
Lemoge v. United States, 587 F.3d 1188, 1198 n. 3 (9th Cir. 2009).
“[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely
on the U.S. Marshal for service of the summons and complaint.” Puett v. Blandford, 912
F.2d 270, 275 (9th Cir. 1990). “So long as the [plaintiff] has furnished the information
necessary to identify the defendant, the marshal’s failure to effect service is automatically
good cause within the meaning of Rule 4[(m)].” Walker v. Sumner, 14 F.3d 1415, 1422
(9th Cir. 1994), overruled on other grounds by Sandin v. Conner, 515 U.S. 472 (1995).
2 While filed after Plaintiff’s Notice, Thornell’s Notice of Service of Records is listed
as doc. 24, not doc. 23. Compare (doc. 24) with (doc. 23).
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However, it remains Plaintiff’s responsibility to provide the United States Marshal
with accurate and sufficient information to effect service. See Walker, 14 F.3d at 1422. The
Court is not required to act as an investigative body in ascertaining a correct address for
Defendant. Id.; DeRoche v. Funkhouser, No. CV 06-1428-PHX-MHM (MEA), 2008 WL
4277659, at *1 (D. Ariz. Sept. 16, 2008) (“neither the Marshal Service nor the Court may
engage in investigatory efforts on behalf of the parties to a lawsuit as this would improperly
place the Court in the role of an advocate”); Pliler v. Ford, 542 U.S. 225, 231 (2004)
(“[F]ederal district judges have no obligation to act as counsel or paralegal to pro se
litigants.”).
Even if a plaintiff fails to show good cause, the district court may also, in its
discretion, “extend time for service upon a showing of excusable neglect.” Lemoge, 587
F.3d at 1198. To determine whether there is “excusable neglect,” the Court considers: (1)
the danger of prejudice to the opposing party; (2) the length of the delay and its potential
impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted
in good faith. Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 1997) (citing
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 395 (1993)).
III. Discussion.
To date, the docket does not reflect that Defendant Unknown Officer #1 has been
served. Since the District Court permitted Plaintiff’s Eighth Amendment threat-to-safety
claim against Defendant Unknown Officer #1 to proceed on October 8, 2024, over 400
days have passed. See (doc. 9.) More importantly, since the District Court’s August 28,
2025 Order, which warned that a defendant may be dismissed without prejudice if service
was not completed within 60 days, 105 days have passed without any attempt by Plaintiff
to serve Defendant Unknown Officer #1. See (doc. 27 at 5.)
Allowing Defendant Unknown Officer #1 to remain in this action indefinitely
without service will cause a lengthy delay in these proceedings. Plaintiff has failed to notice
substitution identifying Defendant Unknown Officer #1. There is a dearth of evidence in
the docket establishing any attempt to serve this Defendant. Further, Plaintiff has not filed
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any motion seeking an extension of time to serve Defendant Unknown Officer #1.
Therefore, the Court does not find excusable neglect, and accordingly recommends
Defendant Unknown Officer #1 be dismissed without prejudice.
Accordingly,
IT IS RECOMMENDED that Defendant Unknown Officer #1 be DISMISSED
WITHOUT PREJUDICE for failure to effect timely service pursuant to Fed. R. Civ. P.
4(m).
This recommendation is not an order that is immediately appealable to the Ninth
Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should
not be filed until entry of the District Court’s judgment. The Parties shall have 14 days
from the date of service of a copy of this recommendation within which to file specific
written objections with the Court. See 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 6,
72. Thereafter, the Parties have 14 days within which to file a response to the objections.
Failure to file timely objections to the Magistrate Judge’s Report and
Recommendation may result in the acceptance of the Report and Recommendation by the
District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the
Magistrate Judge may be considered a waiver of a party’s right to appellate review of the
findings of fact in an order or judgment entered pursuant to the Magistrate Judge’s
recommendation. See Fed. R. Civ. P. 72.
Dated this 11th day of December, 2025.
Honorable John Z. Boyle
United States Magistrate Judge
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