Callier v. Pottawatomie County Public Safety Center Trust et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
SHELLY CALLIER, as Co-Administrator )
of the Estate of KELLIE WRIGHT, )
)
Plaintiff, )
)
v. ) Case No. CIV-23-594-G
)
POTTAWATOMIE COUNTY PUBLIC )
SAFETY CENTER TRUST, et al., )
)
Defendants. )
REPORT & RECOMMENDATION
Plaintiff Shelly Callier, proceeding through counsel and in her capacity as the co-
administrator of the estate of Kellie Wright, filed this action under 42 U.S.C. § 1983
alleging civil rights violations in connection with Ms. Wright’s death on July 10, 2021. (ECF
No. 8). Plaintiff named as defendants five John Doe “detention and medical staff, who
were, at all times pertinent hereto, employed by PCPSCT/Pottawatomie County/Turn
Key.” (ECF No. 8:3). Plaintiff never moved to amend her complaint to name these
Defendants and never served them with process. On February 20, 2026, the undersigned
directed Plaintiff to show cause why these Defendants should not be dismissed pursuant
to Federal Rule of Civil Procedure 4(m). (ECF No. 119).
Plaintiff did not file any response to the order, and the time within which to do so
has expired. For the reasons discussed below, it is recommended that Plaintiff’s claims
against these Defendants be DISMISSED for Plaintiff’s failure to effect service as required
by Fed. R. Civ. P. 4(m).
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I. STANDARD OF REVIEW
The Court’s preliminary inquiry under Rule 4(m) is to determine if Plaintiff has
shown good cause for her failure to timely effect service.
See Espinoza v. United States,
52 F.3d 838, 841 (10th Cir. 1995). “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.”
Espinoza,
52 F.3d at 841. Factors for the Court to consider include whether “the applicable statute
of limitations would bar the refiled action[;]” whether “the complex requirements of
multiple service” made the plaintiff’s service attempts unsuccessful; and whether the
plaintiff is proceeding
pro se.
Espinoza, 52 F.3d at 842 & n.8. If the statute of limitations
has run, the court also considers (1) the degree of actual prejudice to the defendant; (2)
the amount of interference with the judicial process; (3) the culpability of the litigant; (4)
whether the court warned the party in advance that dismissal of the action would be a
likely sanction for noncompliance; and (5) the efficacy of lesser sanctions.
See Ehrenhaus
v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992).
II. DISCUSSION
“Plaintiff has made no attempt to show ‘good cause’ under Rule 4(m) for the failure
to complete service, and no ‘good cause’ is otherwise reflected in the record before the
Court.”
Fitzhugh v. Pioneer Web Design, No. CIV-25-342-G, 2025 WL 3516802, at *1
(W.D. Okla. Dec. 8, 2025);
see Hawley v. Bd. of Trs. for Oklahoma Cnty. Crim. Just.
Auth., No. CIV-25-151-SLP, 2025 WL 2045594, at *1 (W.D. Okla. July 21, 2025). This
case has been pending since July 10, 2023, and Plaintiff had ample time to conduct
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discovery and identify the names of these John Doe Defendants. (ECF Nos. 7, 35, 41,
54). Thus, the undersigned finds no good cause for this delay.
The record also does not support granting Plaintiff a permissive extension of time.
Plaintiff has not described what attempts she has made to identify and serve these
Defendants.
See Fitzhugh, 2025 WL 3516802, at *2 (citing
Smith v. Glanz, 662 F. App’x
595, 596, 597-98 (10th Cir. 2016). Plaintiff is represented by counsel.
Additionally, as noted
supra, this case has been pending for almost three years,
and the undersigned has recommended that the court grant several defendants’ motions
for summary judgment. “Although it does appear Plaintiff may be time-barred from
refiling some (if not all) of her claims, that factor alone is not dispositive.”
Hawley, 2025
WL 2045594, at *1.
Plaintiff’s failure to respond to the Court’s Order impacts the Court’s ability
to manage its docket and move forward with the cases before it, and it
cannot do this if a party fails to respond to court orders. With respect to the
third factor, Plaintiff was expressly warned this action may be dismissed
without further notice if she failed to show cause. As to the fourth factor,
Plaintiff is culpable for the failure to accomplish service (or show cause why
she could not). Finally, the Court finds that no sanction less than dismissal
is practical under the circumstances. Absent any response from Plaintiff, the
Court cannot ascertain whether she still intends to pursue claims against
the John and Jane Doe Defendants, nor does the record suggest any other
sanction would be appropriate. Considering all these factors together, the
Court finds dismissal without prejudice is warranted, even if it is equivalent
to dismissal with prejudice.
Id., 2025 WL 2045594, at *2 (citation modified).
Accordingly, the undersigned recommends that no additional time be permitted to
allow plaintiff to serve the John Doe Defendants, and that Plaintiff’s claims against these
Defendants be dismissed without prejudice under Fed. R. Civ. P. 4(m).
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III. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
For the reasons discussed, the undersigned recommends that the court DISMISS
without prejudice the John Doe Defendants pursuant to Fed. R. Civ. P. 4(m).
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 March 25, 2026, in accordance with 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).
IV. STATUS OF THE REFERRAL
This Report and Recommendation terminates the referral in this matter.
IT IS SO ORDERED on March 11, 2026.
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