United States District Court, D. Kansas
MEMORANDUM AND ORDER
DANIEL D. CRABTREE, District Judge.
Plaintiff filed this pro se civil rights lawsuit under 42 U.S.C. § 1983 against numerous individuals alleging that they violated the Eighth Amendment by failing to provide him proper dental care during his incarceration at the Lansing Correctional Facility ("LCF"). Among other things, plaintiff alleges that defendants denied him access to items he requires to treat his dental condition "including medical marijuana, an iPod, a laptop, unlimited access to digital music, and pornography." Conley v. McKune, 529 F.Appx. 914, 921 (10th Cir. 2013) (holding that plaintiff's claim that he suffers a serious dental condition, that defendants knew about the condition, and that defendants denied him treatment for that condition stated a claim for relief but plaintiff's denial of the items he claims he needs to self-treat his condition does not constitute cruel and unusual punishment under the Eighth Amendment).
In prior orders, the Court dismissed all claims against the defendants who have been served in this lawsuit. The only defendants now remaining in this action are: (1) David R. McKune (sued in his individual capacity only); (2) Ellen Bartz (sued in her individual capacity only); and (3) Joe Pantano (sued in his official and individual capacity). However, plaintiff has never served these three defendants.
Fed. R. Civ. P. 4(m) requires a plaintiff to serve a defendant within 120 days after filing a complaint. Fed.R.Civ.P. 4(c)(3) provides that the Court must order a United States Marshal or Deputy Marshal to effect service if the plaintiff is proceeding in forma pauperis under 28 U.S.C. § 1915.
On August 23, 2012, the Court granted plaintiff in forma pauperis status. (Doc. 66) On August 21, 2013, the Court ordered the Clerk of the Court to prepare waiver of service forms for, among others, defendants McKune, Bartz, and Pantano to be served by the Marshal's Service under Fed.R.Civ.P. 4(c)(3). (Doc. 96) The Marshal's Service, however, was unable to complete service on defendants McKune, Bartz, and Pantano because they were no longer employees at LCF. (Docs. 104, 105, 106)
The docket reflects that these three defendants were not served within 120 days after plaintiff filed the Complaint (Doc. 1) or the First Amended Complaint (Doc. 68), as Fed.R.Civ.P. 4(m) requires. And, to date, plaintiff has not yet served these three defendants.
On September 12, 2013, plaintiff filed a Motion for Clarification (Doc. 112) and an Amended Motion for Clarification (Doc. 113), asking the Court to determine the whereabouts of defendants McKune, Bartz, and Pantano so that plaintiff could serve them with the Complaint and Summons in this case.
On April 8, 2014, Judge Sebelius denied plaintiff's motions. (Doc. 135) In the order denying the motions, Judge Sebelius noted that plaintiff had not provided any other address where the Marshal's Service should attempt service, and he emphasized that it was plaintiff's responsibility "to cooperate with the Marshal's Service to effect service and take reasonable steps to identify the defendant by name and address so that service can be accomplished." ( Id. at 2 (citation and internal quotation marks omitted)) Judge Sebelius also explained that if the Marshal's Service could not make service with the information provided by plaintiff, "the onus remains upon plaintiff to discover and submit sufficient information for service of all defendants he has named in his lawsuit." ( Id. (citation and internal quotation marks omitted)) Judge Sebelius therefore ordered plaintiff to file a notice with the Court providing the current addresses of defendants McKune, Bartz, and Pantano within thirty days of the Order (or by May 8, 2014). ( Id. at 3) Judge Sebelius warned plaintiff that failing to provide the addresses could lead the Court to dismiss plaintiff's Amended Complaint against these three defendants. ( Id. (citing Fed.R.Civ.P. 4(m)))
Plaintiff failed to file a notice with the Court providing the current addresses of defendants McKune, Bartz, and Pantano by the deadline imposed in Judge Sebelius' Order. Therefore, on January 30, 2015, the Court ordered plaintiff to show cause in writing why the Court should not dismiss his claims against these three defendants for failure to prosecute. (Doc. 146)
Plaintiff filed two responses to the Court's Order directing plaintiff to show cause. In one response (signed by plaintiff on January 17, 2015), plaintiff claims that this is "the first time [he] has been aware of the fact that McKune, Bartz and Pantano have not been properly notified" of this lawsuit. (Doc. 151 at 1) He also contends that he never received any order to respond. ( Id. ) Plaintiff asserts that he has "diligently" tried to obtain addresses for defendants McKune, Bartz, and Pantano but the "only thing [he] has been told concerning who to send the summons to" is the Kansas Secretary of Corrections and the Kansas Attorney General. ( Id. at 1-2)
Plaintiff's other response (signed on January 30, 2015) states that he "apologizes for the late response due to the fact, ever since he was notified to locate McKune and Bartz's address[es], he has been diligently trying to investigate and ascertain their whereabouts and their locations." (Doc. 147 at 1) He claims that he was told that defendant McKune is still employed by the State of Kansas and the Kansas Department of Corrections and that "his proper authorized agents" are Derek Schmidt, Attorney General, and Ray Roberts, Secretary of Corrections. ( Id. )
II. Legal Standard
A plaintiff is entitled to a mandatory extension of time to serve a defendant if he shows good cause for his failure to effect service within the time specified by Fed.R.Civ.P. 4(m). Espinoza v. United States, 52 F.3d 838, 841 (10th Cir. 1995). If the plaintiff does not show good cause, the court must consider, in its discretion, whether a ...