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Holm v. Beaver

United States District Court, D. Montana, Helena Division

October 25, 2019

BRIAN HOLM, Plaintiff,
v.
CRYSTAL BEAVER, P.R. FOR THE ESTATE OF BRIAN BEAVER, HER HEIRS, EXECUTORS, SUCCESSORS, AND ASSIGNS, Defendants.

          ORDER

          Dana L. Christensen, United States District Court Chief Judge

         Before 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).

         BACKGROUND

         Holm, a 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, )

         Holm 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.)

         However, 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.)

         Holm 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.)

         DISCUSSION

         When a 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).

         Still, 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 Procedure 4(m):

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.

         Be that 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.

         The 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 [90] 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 ...

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