Frederick v. Hamilton et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
JOSEPH FREDERICK, )
)
Plaintiff, )
)
v. ) Case No. CIV-24-847-SLP
)
CASEY HAMILTON, et al., )
)
Defendants. )
REPORT AND RECOMMENDATION
Plaintiff, a state prisoner appearing pro se and in forma pauperis, seeks relief under
42 U.S.C. § 1983 for alleged civil rights violations. United States District Judge Scott L.
Palk referred this matter to the undersigned Magistrate Judge for initial proceedings
consistent with 28 U.S.C. § 636(b)(1)(B)-(C). For the reasons set forth below, the
undersigned recommends that the matter be dismissed without prejudice based on
Plaintiff’s failure to serve the complaint.
I. Discussion
After initial review of the complaint, the undersigned recommended partial
dismissal of Plaintiff’s claims. Doc. 14. Judge Palk adopted the recommendation, leaving
only Plaintiff’s First Amendment retaliation claim seeking monetary damages against
Defendant A. Johnson in his individual capacity. Doc. 15. On July 28, 2025, the Court
ordered Plaintiff to complete service on Defendant Johnson. Doc. 16 at 2. Because
Plaintiff proceeds in forma pauperis (“IFP”), service was to be attempted by the United
States Marshals Service (“USMS”). To facilitate service by the USMS, Plaintiff was
ordered to complete the necessary service papers and return them to the Clerk of Court not
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later than August 27, 2025, and service was to be completed not later than October 27,
2025. Id.
Plaintiff’s ninety-day deadline to effect service on Defendant Johnson has now
expired. See id.; Fed. R. Civ. P. 4(m). Under Rule 4(m), if a plaintiff fails to serve a
defendant within the ninety-day period, the Court “must dismiss the action without
prejudice against that defendant or order that service be made within a specified time.”
Fed. R. Civ. P. 4(m). “But if the plaintiff shows good cause for the failure, the court must
extend the time for service for an appropriate period.” Id. Plaintiff has not shown good
cause for the failure.
On October 28, 2025, the Court noted that the docket showed no indication that
Plaintiff had returned properly completed service papers to the Clerk of Court or that
service had been completed on Defendant Johnson. Doc. 17. Nor was there any indication
in the record that Plaintiff had sought additional time to complete service or otherwise
responded to the Court’s order. Id. Accordingly, the Court ordered Plaintiff to show cause
in writing why he had not taken the necessary steps to return service papers to the Clerk of
Court and to complete service on Defendant Johnson. Id. Plaintiff’s deadline for doing so
was November 18, 2025, and the Court warned that “failure to comply with this Order will
likely result in dismissal of this action without prejudice.” Id. (citation modified). A
review of the docket indicates that Plaintiff has not shown cause for his failure to complete
service, sought additional time to complete service, or otherwise responded to the Court’s
Order.
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Notwithstanding Plaintiff’s failure to show good cause, the Court must consider
whether “a permissive extension of time may be warranted.” Espinoza v. United States,
52 F.3d 838, 841 (10th Cir. 1995). In doing so, the Court considers “whether the statute
of limitations would bar the plaintiff from refiling the action, whether the plaintiff has
unsuccessfully attempted to serve the United States, and whether the delay in service
relates to the plaintiff’s pro se status or confusion or delay in obtaining permission to
proceed in forma pauperis.” Johnson v. Harris, No. CIV-23-513-SLP, 2024 WL 3857342,
at *1 (W.D. Okla. Aug. 16, 2024) (citing Espinoza, 52 F.3d at 842 & n.8). The United
States is not a Defendant in this action, and there is no indication in the record of delay due
to Plaintiff’s pro se or IFP status.
Additionally, it does not appear that the two-year statute of limitations applicable to
Plaintiff’s claims would bar him from refiling the action should he choose to do so. See
Stillwell v. Neely, No. CIV-24-482-D, 2024 WL 4437140, at *2 n.2 (W.D. Okla. Oct. 7,
2024) (“A two-year statute of limitations governs Plaintiff’s § 1983 claim.”); see also Price
v. Philpot, 420 F.3d 1158, 1162 (10th Cir. 2005) (explaining that Oklahoma’s two-year
statute of limitations applies to a civil rights action brought under § 1983). Plaintiff
initiated this action on August 16, 2024, and alleges events underlying his suit took place
between May 1, 2024, and August 8, 2024. Doc. 1-2 at 1; Doc. 1 at 6.
Having considered these factors, the undersigned recommends that the Court
dismiss this action without prejudice based on Plaintiff’s failure to serve timely Defendant
Johnson, the only remaining defendant. See, e.g., Brewer v. White, No. CIV-24-469-G,
2025 WL 567027, at *3 (W.D. Okla. Jan. 10, 2025) (recommending dismissal without
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prejudice when plaintiff did not establish good cause for failure to complete service and a
permissive extension was not warranted) (R&R), adopted, 2025 WL 565027 (W.D. Okla.
Feb. 20, 2025).
II. Recommendation and Notice of Right to Object
For the foregoing reasons, the undersigned recommends that the Court DISMISS
the action without prejudice. Plaintiff is advised of his right to object to this Report and
Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of
Court not later than December 29, 2025. See id. § 636(b)(1); Fed. R. Civ. P. 72(b)(2).
Failure to object timely waives the right to appellate review of the factual and legal issues
addressed in this Report and Recommendation. See Moore v. United States, 950 F.2d 656,
659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned
Magistrate Judge in this matter.
ENTERED this 5th day of December, 2025.
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