United States District Court, D. Montana, Helena Division
L. Christensen, United States District Court Chief Judge
the Court is the October 4, 2019 Findings and Recommendations
of United States Magistrate Judge John Johnston. (Doc. 17.)
Judge Johnston recommends that the Court dismiss the
above-captioned matter without prejudice for failure to serve
pursuant to Federal Rule of Civil Procedure 4. (Id.)
Plaintiff Holm timely objected, and he is therefore entitled
to de novo review. 28 U.S.C. § 636(b)(1)(C).
state prisoner without counsel (see Doc. 9), seeks damages
for the Defendants' alleged breach of the confidentiality
clause in a settlement agreement (Doc. 2 at 2). On July 30,
2018, Holm filed his Complaint (Doc. 2) and a motion to
proceed in forma pauperis, which the Court granted on October
3, 2018. (Doc. 7 at 3.) In order to carry out the Court's
duty under 28 U.S.C. § 1915(d) to issue and serve all
process, it issued an Order on April 2, 2019 for Holm to
provide a current address for the Defendants. (Doc. 10 at 2,
timely responded to the Court's Order on April 26, 2019
with an Arizona address for the "Attorney Rep. for
[Defendant] Beaver." (Doc. 11.) The Court ordered the
Clerk of Court to forward process, along with a request to
waive service of summons, to the Arizona address Holm
provided. (Doc. 12.) The Clerk mailed the documents as
ordered, but on August 6, 2019, they returned as
undeliverable. (Doc. 13.) Accordingly, Judge Johnston
recommended that the Court dismiss Holm's action without
prejudice for foiling to fulfill his "obligation to
provide accurate and sufficient information to effect
service." (Doc. 14.)
in his objection to Judge Johnston's findings and
recommendation, Holm explained that a third party personally
served the Defendants. (Doc. 15 at 2.) Therefore, Judge
Johnston withdrew his recommendation for dismissal and
ordered Holm to either "file proof of service on or
before September 13, 2019 or alternatively request the Court
to send a request for waiver of service of summons to Ms.
Beaver at the New Mexico address he provided in his August
26, 2019 Objections." (Doc. 16.)
never responded to the Court's Order, and on October 4,
2019, Judge Johnston issued the Findings and Recommendations
now before the Court. (Doc. 17.) As previously noted, Judge
Johnston recommends that the Court dismiss Holm's action
for failure to serve pursuant to Fed.R.Civ.P. 4. (Doc. 17 at
2.) Holm timely objected on October 11, 2019. (Doc. 18.)
There, he stated that the Court "suggested that [he] was
served with a 'Request for waiver of service, '"
which he never received. (Id.) He requested that the
Court "forward such a request to the address suggested
in the most recent communication from this Court" - that
is, to Ms. Beaver in New Mexico. (Id.)
court authorizes a prisoner to proceed in an action in forma
pauperis pursuant to 28 U.S.C. § 1915, the court must
"issue and serve all process, and perform all
duties." 28 U.S.C. § 1915(d). Therefore,
"having provided the necessary information to help
effectuate service of the summons and complaint," an
incarcerated pro se plaintiff proceeding in forma pauperis is
entitled to rely on the U.S. Marshal, or by another person
specially appointed by the court, for service of process.
Puett v. Blandford, 912 F.2d 270, 275 (9th Cir.
1990); Fed.R.Civ.P. 4(c)(3).
proceeding pro se is not "a license not to comply with
relevant rules of procedural and substantive law."
Faretta v. California, 422 U.S. 806, 834 n.46
(1975). A pro se plaintiff proceeding in forma pauperis
remains subject to the consequences of Federal Rule of Civil
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 the defendant or order that service be made
within a specified time.
as it may, Rule 4(m) allows additional time if there is good
cause for plaintiff's failure to effect service in the
prescribed 90 days. Id.
Rule also "authorizes the court to relieve a plaintiff
of the consequences of an application of [Subdivision (m)]
even if there is no good cause shown." Fed.R.Civ.P. 4,
Advisory Committee Note to 1993 Amendments, Subdivision (m).
"The Federal Rules thus convey a clear message:
Complaints are not to be dismissed if served within  days
or within such additional time as the court may
allow." Henderson v. United States, 517 U.S. 654,
663 (1996) (emphasis added). Accordingly:
[T]he overwhelming majority of federal courts and dicta from
the Supreme Court embrace the view that a district court has
discretion under Rule 4(m) to dismiss a complaint or to allow
the plaintiff to cure a defect in ...