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Terry-Lee v. North Valley County Water and Sewer, Assoc., P.H.D.

United States District Court, D. Montana, Great Falls Division

October 3, 2019

TERRY-LEE, Plaintiff,
v.
NORTH VALLEY COUNTY WATER AND SEWER, ASSOC., P.H.D., et al., Defendants.

          AMENDED ORDER

          BRIAN MORRIS UNITED STATES DISTRICT COURT JUDGE.

         Plaintiff Terry-Lee filed a motion for leave to proceed in forma pauperis (IFP) on May 2, 2018. (Doc. 1.) United States Magistrate Judge John Johnston granted Terry-Lee's motion for leave to proceed IFP pursuant to 28 U.S.C. § 1915. (Doc. 4.) Terry-Lee filed his first Complaint on May 2, 2018. (Doc. 2.)

         Judge Johnston issued Findings and Recommendations on June 19, 2018. (Doc. 6.) Judge Johnston determined that Terry-Lee's Complaint was frivolous and sought monetary relief from parties who are immune from such relief pursuant to 28 U.S.C. § 1915(e)(2). (Id. at 1-2.) Judge Johnston recommended that Terry-Lee be allowed twenty days to file an Amended Complaint. (Id. at 14.) This Court adopted Judge Johnston's findings and recommendations in full. (Doc. 11 at 2.)

         Terry-Lee filed an Amended Complaint on July 9, 2018. (Doc. 7.) Judge Johnston issued an Order on November 28, 2018, directing Terry-Lee to serve the Defendants with process and provide proof of service to the Court on or before January 11, 2019. (Doc. 13 at 1.) Judge Johnston warned Terry-Lee that this case may be dismissed if Terry-Lee failed to comply with the Order. (Id. at 2.) Terry-Lee did not comply with the Order. (Doc. 17 at 1.)

         Judge Johnston issued a second Order on June 6, 2019, directing Terry-Lee to serve the Defendants with process and to provide proof of service. (Doc. 16.) Judge Johnston ordered Terry-Lee to serve the Defendants on or before July 5, 2019. (Id. at 1-2.) Judge Johnston informed Terry-Lee that he would recommend that this Court dismiss the case if Terry-Lee failed to comply with the Order. (Id. at 2.) Terry-Lee did not serve the Defendants and did not otherwise responded to the Court's Order. (Doc. 17 at 1-2.)

         Judge Johnston issued Findings and Recommendations on July 18, 2018. (Doc. 17.) Judge Johnston recommended that this matter be dismissed without prejudice for failure to comply with the Court's June 6, 2019, Order. (Id. at 2.) Terry-Lee filed an objection to Judge Johnston's Findings and Recommendations on August 1, 2019. (Doc. 18.) Terry-Lee also filed a motion asking the Court to order the United States Marshal's Service to serve Terry-Lee's complaints and summons on the Defendants. (Doc. 19.)

         The Court reviews de novo Findings and Recommendations timely objected to. 28 U.S.C. § 636(b)(1). The Court reviews for clear error the portions of the Findings and Recommendations to which Terry-Lee did not specifically object. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). Where a party's objections constitute perfunctory responses argued in an attempt to engage the Court in a re-argument of the same arguments set forth in the original response, however, the Court will review the applicable portions of the findings and recommendations for clear error. Rosling v. Kirkegard, 2014 WL 693315 *3 (D. Mont. Feb. 21, 2014) (internal citations omitted).

         I. Terry-Lee's Objections

         Terry-Lee objects to Judge Johnston's conclusion that this matter should be dismissed for failure to comply with the June 6, 2019, Order directing Terry-Lee to serve the Defendants and to provide proof of service. (Doc. 18.) Terry-Lee now requests that this Court order the United States Marshal's Service to serve his Complaint and Summons on his behalf. (Docs. 18 & 19.)

         Officers of the Court “shall issue and serve all process” in cases where the plaintiff is proceeding IFP. 28 U.S.C. § 1915(d). The Court must order that service be made by a United States marshal, United States deputy marshal, or by a person specifically appointed by the Court at the plaintiff's request if the plaintiff is authorized to proceed IFP under 28 U.S.C. § 1915. Fed.R.Civ.P. 4(c)(3). A plaintiff proceeding IFP must request service of his summons and complaint by court officers before the officers are responsible for effectuation such service. Boudette v. Barnette, 923 F.2d 754, 757 (9th Cir. 1991).

         Terry-Lee did not request that the Court arrange for service when this matter was before Judge Johnston. Judge Johnston's Findings and Recommendations, issued on July 18, 2019, recommend dismissal of the matter based on Terry-Lee's failure to serve the Defendants. (Doc. 17 at 2.) Terry-Lee subsequently requested that the Court arrange for service. (Docs. 18 & 19.) The Court must arrange for service at an IFP plaintiff's request. 28 U.S.C. § 1915; Fed.R.Civ.P. 4(c)(3). Terry-Lee's request renders moot Judge Johnston's Findings and Recommendations (Doc. 17).

         It remains this Court's practice, upon request by a plaintiff proceeding IFP, to first request that a defendant waive service before ordering the United States Marshal's Service to effectuate service pursuant to 28 U.S.C. § 1915(d) and Fed.R.Civ.P. 4(c)(3). This Court would first request that the Defendants waive service before ordering the United States Marshal's Service to serve the Amended Complaint if this matter were to proceed.

         II. Terry-Lee's Amended Complaint

         Once a court permits a case to proceed IFP, the court “shall dismiss the case at any time if the court determines that . . . the action or appeal is frivolous or malicious; fails to state a claim on which relief can be granted; or seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). Dismissal is not discretionary. A court must dismiss a case proceeding IFP if it ...


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