Taylor v. Prescott, City of et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Noah Well Taylor,
Plaintiff,
v.
City of Prescott, et al.,
Defendants.
No. CV-25-08132-PCT-ROS (JZB)
REPORT AND RECOMMENDATION
TO THE HONORABLE ROSLYN O. SILVER, UNITED STATES DISTRICT
JUDGE:
This matter is before the Court upon its own review. Plaintiff has failed to timely
serve all Defendants in this action and has failed to show cause why his claims against all
Defendants should not be dismissed for failure to serve. Accordingly, the Court
recommends this matter be dismissed as to all Defendants without prejudice pursuant to
Rule 4(m) of the Federal Rules of Civil Procedure. Consequently, this Court further
recommends that this action be dismissed without prejudice pursuant to Rule 41(b).1
I. Background.
On June 23, 2025, Plaintiff, who is not in custody, filed a pro se civil rights
Complaint pursuant to 42 U.S.C. § 1983. (Doc. 1.) In his Complaint, Plaintiff named as
Defendants: (1) the City of Prescott; (2) the Prescott Police Department; (3) the Prescott
Municipal Court; (4) City of Prescott Prosecuting Attorney Alane Moore; (5) Arizona
1 This matter was referred to this Court “for all pretrial proceedings as authorized
under 28 U.S.C. § 636(b)(1).” (Doc. 4 at 2.)
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Attorney General Kris Mayes; and (6) the Federal Bureau of Investigation. See (id.) On
August 18, 2025, the District Court entered an Order requiring Plaintiff to serve the
Defendants by October 17, 2025. (Doc. 4 at 1.) The District Court warned Plaintiff that
failure to serve the Defendants by October 17, 2025, would lead to this action being
“dismissed as to each Defendant not served.” (Id.) (citing Fed. R. Civ. P. 4(m)).
On November 26, 2025, this Court issued a show cause order requiring Plaintiff to
show cause on or before December 9, 2025, why his claims against Defendants should not
be dismissed for failure to effect service of process as required by Rule 4(m).
To date, Plaintiff has neither responded to the Court’s order to show cause nor
served any named Defendant. Additionally, the docket shows no evidence that any
Defendant has been served. Consequently, 218 days have passed since Plaintiff filed his
Complaint, and 162 days have passed since the District Court’s Screening Order.
II. Legal Standard.
Rule 16.2(b)(2)(B) of the Local Rules of Civil Procedure, which governs Plaintiff’s
civil rights action, 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).
Even if a plaintiff fails to show good cause, the district court may also, in its
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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 any Defendant has been served. Since
Plaintiff filed his Complaint, 218 days have passed. See (doc. 1.) Since the District Court
screened Plaintiff’s Complaint on August 18, 2025, 162 days have passed. See (doc. 4.)
Additionally, Plaintiff has failed to timely respond to this Court’s order to show cause. See
(doc. 5.)
Allowing this action to fester indefinitely without service on any Defendant siphons
limited judicial resources. Additionally, the Court does not find excusable neglect because
Plaintiff has not served any Defendant, has not responded to this Court’s order to show
cause, and has not filed any motion or notice since filing his Complaint. Therefore, in
absence of excusable neglect, and for the foregoing reasons, the Court recommends that all
Defendants be dismissed without prejudice.
Because—were this recommendation adopted—Plaintiff has failed to comply with
multiple court orders, and considering no Defendant remains in this action, the Court
recommends that this action be dismissed without prejudice. See Fed. R. Civ. P. 41(b); see
also Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (affirming district judge’s
dismissal of an action for failure to comply with a court order requiring timely filing of a
document).
In making this determination, the Court has considered the five Ferdik factors.2
2 “In determining whether to dismiss a case for failure to comply with a court order
the district court must weigh five factors including: ‘(1) the public’s interest in expeditious
resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice
to the defendants; (4) the public policy favoring disposition of cases on their merits; and
(5) the availability of less drastic alternatives.’” Ferdik, 963 F.2d at 1260–61 (quoting
Thompson v. Hous. Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 1986)).
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Ferdik, 963 F.2d at 1260–61. Here, the first, second, and third factors favor dismissal of
this case. The fourth factor, as always, weighs against dismissal. With regard to the fifth
factor, the Court has considered whether there are less drastic sanctions available, and finds
there are none. Plaintiff was given ample time to serve the Defendants in this action.
Additionally, Plaintiff was put on notice twice that he was required to serve the Defendants
in this action. Even after being provided ample time and notice, Plaintiff has not served
any Defendant. Because, Plaintiff has not complied with two court orders to serve the
Defendants named in this action, (docs. 4–5), this Court recommends this action be
dismissed without prejudice.
Accordingly,
IT IS RECOMMENDED that all Defendants be DISMISSED WITHOUT
PREJUDICE for failure to effect timely service pursuant to Fed. R. Civ. P. 4(m).
IT IS FURTHER RECOMMENDED that, in light of Plaintiff’s failure to effect
timely service after two court orders, this case be DISMISSED WITHOUT
PREJUDICE.
IT IS ORDERED that the Clerk of Court shall mail this Report and
Recommendation to Plaintiff’s address listed in the docket.
IT IS FURTHER ORDERED that the Clerk of Court shall email this Report and
Recommendation to Plaintiff’s email address: Noahsmightymen@gmail.com.
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,
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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 27th day of January, 2026.
Honorable John Z. Boyle
United States Magistrate Judge
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