Free Reply to Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona JOHN R. MAYFIELD Assistant U.S. Attorney Arizona State Bar No. 4848 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Carlos Arthur Powell, vs. Plaintiff

CIV 03-1819-PHX-JAT(LOA) Reply to Response to Motion to Dismiss

F. Garcia, (Assist. Warden); C. Miles (Unit Manager/Bravo); E. Scalet, (INS INV.), et al Defendants

Defendant Earl R. Scalet (Scalet), by and through his undersigned counsel, respectfully submits his Reply to plaintiff's Response to dismiss plaintiff's Second Amended Complaint pursuant to Rules 4 (m), 12 (b)(2), 12 (b)(5), and 41(b) Federal Rules of Civil Procedure.1 This Court lacks personal jurisdiction over defendant Scalet. The plaintiff failed to effect timely personal service of process on Scalet and timely serve the United States Attorneys's Office and the Attorney General of the United States. Further, the plaintiff has failed to prosecute his action against Scalet and has otherwise failed to comply with the Orders of this Court regarding service of process. This Reply is supported by the attached Memorandum of Points and Authorities

On Monday July 3, 2006 the electronic version of the Response was received. On July 6, 2006, the Response was received by the United States Attorneys's Office in the regular mail. 1

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and exhibits and other matters of record. Respectfully submitted this 19th day of July, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/ John R. Mayfield JOHN R. MAYFIELD Assistant U.S. Attorney Attorneys for federal defendant Scalet MEMORANDUM OF POINTS AND AUTHORITIES I. a. Powell has failed to establish excusable neglect. It is well-settled Ninth Circuit law that personal service is required in Bivens

actions. Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1987); Simpkins v. District of Columbia Government, 108 F.3d 366, 369 (D.C.Cir. 1997); Robinson v. Turner, 15 F.3d 82, 84 (7th Cir. 1994). The failure to perfect timely personal service is fatal to a Bivens action. Daly-Murphy, 837 F.2d. at 355; Deutsch v. U.S. Dept. of Justice, 881 F. Supp. 49 (D.D.C. 1995); Pollack v. Meese, 727 F.Supp. 663, 666 (D.D.C., 1990). Powell knew or should have known that when money damages are sought in a Bivens action personal service is necessary to obtain individual capacity jurisdiction. Daly-Murphy, 837 F.2d at 355; Johnston v. Horne, 875 F.2d 1415, 1424 (9th Cir., 1989);Hutchinson v. United States, 677 F.2d 1322, 1228 (9th Cir., 1982). Powell's attempted service on Scalet within the 120 days following the December 29, 2003 Order was legally insufficient. 2 The mere return of a "Certified Return Receipt card" is ineffective personal service. Delivery on an employer does not constitute proper service on the employee who has been sued in his individual capacity. Ecclesiastical Order of the Ism of Am, Inc. v. Chasin, 845 F.2d 113, 116 (6th Cir.1988). Further, service by mail without an acknowledgment of receipt is insufficient and whether

Since the date of that Order the docket sheet indicates that over 176 docket entries have been made in this matter. To require Scalet to obtain and review each of this entries to
bring himself up to speed on this case would be unjustified. 2

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a defendant had notice of the legal action, despite the lack of personal service, is immaterial. Friedman v. Estate of Presser, 929 F.2d 1151, 1155-57 (6th Cir.1991). The Ninth Circuit has specifically held that plaintiffs filing Bivens action against federal employees must obtain personal service, and not constructive service at the place of employment. Whether or not the Court was aware that Scalet was a federal employee is irrelevant, Powell knew this from the beginning. Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir.1988)3. In any event, service upon an employee in his official capacity does not amount to service in his individual capacity. Micklus v. Carlson, 632 F.2d 227, 240 ( 3rd Cir., 1980). The Ninth Circuit has specifically rejected an argument that "constructive" service should apply to federal employees. Daly-Murphy, 837 F.2d at 355. Thus, service upon a federal employee's agency is not sufficient; actual personal service must be effected. Townsel v. Contra Costa County, 820 F.2d 319, 320-21 (9th Cir.1987)("Congress balanced the possible loss of a litigant's federal cause of action against the need to encourage diligent prosecution of lawsuits."). b. The burden of proving the existence of a factual basis for the exercise of in personam jurisdiction is on the plaintiff. Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986); Northcross v. Joslyn Fruit Co., Inc., 439 F.Supp. 371 (D. Ariz. 1977). Powell has failed to meet this burden. He merely once again makes self-serving statements that it is not his fault and that in Powell's opinion, Scalet evaded service. Powell has failed to produce copies of his service packets to establish that he specifically requested the U.S. Marshall to obtain personal service on Scalet. Whether defendant Scalet is being sued in his personal and/or official capacity, mere confinement does not excuse the lack of diligence by a pro se plaintiff in effecting
"Thus, we agree with appellees that while serving the defendants at the Medical Center was sufficient to establish jurisdiction over them in their official capacity, it did not suffice to establish jurisdiction over them as individuals. Because a Bivens action can be maintained against a defendant in his or her individual capacity only, and not in his or her official capacity, the failure to perfect individual service is fatal to appellant's Bivens action against the named defendants. Holloman v. Watt, 708 F.2d 1399, 1402 (9th Cir.1983) (citing cases); Lauritzen v. Lehman, 736 F.2d 550, 558 n. 10 (9th Cir.1984)." 3
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service of process. Puett v. Blandford, 912 F.2d 270, 273-76 (9th Cir., 1990) (Prisoner required to diligently pursue proper service.); 4 Marozsan v. United States, 849 F. Supp. 617 (N.D. Ind. 1994) ( The right of self-representation does not excuse a party from compliance with procedural rules and a pro se's ignorance of the requirements of Rule 4, F.R.Civ.P. does not excuse compliance.); Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir., 1994); Kersh v. Derozier, 851 F.2d 1509, 1512 (5th Cir. 1988). From March, 2001, until February, 2006, Scalet was employed by the federal government at the Eloy Detention Center, Eloy, Arizona. This is the same location where Powell had his first contact with Scalet. Scalet Declaration; Powell Declaration.. Personal service on Scalet was not accomplished until April 5, 2006, two years, six months and 18 days after the filing of the Complaint. The United States Attorney `s Office was not served until April 9, 2006 and the Attorney General on May 22, 2006. (DE #'s 182, 185, 186). Powell fails to cite a single Ninth Circuit case that has excused an inmate's failure to effect proper individual service of process after a lapse of over two years. Additionally, Powell provides no explanation as to why he waited until March 7, 2006 (Docket Entry # 173) to alert the Court to his failure to obtain personal service on Scalet. Compare, Puett v. Blandford, 912 F.2d at 273-275 ("This does not mean that a plaintiff may remain silent and do nothing to help effectuate service."). Although Powell attempts to rely on the "good cause" exception to Rule 4(m), it applies only in limited circumstances, and inadvertent error or ignorance of governing rules alone will not excuse a litigant's failure to effect timely service. Hason v. Med. Bd. of Cal., 279 F.3d 1167, 1174 (9th Cir.2002); In re Sheehan, 253 F.3d 507, 512 (9th Cir.2001); Wei v. Hawaii, 763 F.2d 370, 372 (9th Cir.1985). Powell specifically admits he received Returns of Service from the U.S. Marshall. Furthermore, there is still no

While a pro se indigent plaintiff cannot be penalized for the U.S. Marshal's failure to serve process as ordered by the Court, Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir.1993); Puett v. Blandford, 912 F.2d 270 (9th Cir.1989), this exception does not apply in this case. Powell failed to diligently pursue proper service and prosecute his case.
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admissible evidence before this Court that Scalet evaded service. In fact, he made himself available for personal service on April 5, 2006. Scalet Declaration. Powell received numerous warning from this Court that proper service on Scalet, as well as the other defendants, was required. Powell was further placed on notice when this Court denied Powell's Motions for Default judgment against Scalet. c. Powell has failed to explain his prior failures to serve or even request service on

the Attorney General and the U.S. Attorney as required by Rule 4(i)(2)(B). Whale v. United States, 792 F.2d 951, 953(9th Cir., 1986); Light v. Wolf, 816 F.2d 746, 749 (D.C.Cir. 1987). Whether or not Powell filed several amended complaints does not excuse his failure to timely effect personal service on Scalet, and serve the Attorney General and the U.S. Attorney. Service of a subsequent Amended Complaints within 120 days of their filing is ineffective as to a defendant who was named in original Complaint but who was not served within 120 days of filing of original Complaint. In Del Raine v. Carlson, 826 F.2d 698, 705 (7th Cir.1987); Patterson v. Brady, , 131 F.R.D. 679, 683 (N.D.Ind.1990), aff'd 89 F.3d 838 (7th Cir. 1996 ); Leonard v. Stuart-James Co., Inc., 742 F.Supp. 653, 662-63 ( N.D. Ga.1990)("...if an amendment were allowed to substitute for the original for service, plaintiffs would have no incentive to serve the original Complaint within the 120-day period."). In his response, Powell does not contend that he was unaware of the legal requirements for personal service on Scalet, the Attorney General and the U.S. Attorney. Rather he blames everyone else for his failure to meet the requirements of federal law regarding service of process on a federal employee who has been sued for alleged Constitutional violations. Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). It was his responsibility and no one else's to make certain that timely and proper service has been made. d. This Court has already exercised its discretionary authority on behalf of the

plaintiff by extending the time for effecting service on Scalet on at least two prior
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occasions. [DE# 5, # 38]. Therefore, further equitable relief is simply unjustified. CONCLUSION Powell received ample warnings from the Court. He knew or should have known that he had failed to obtain proper service on Scalet, the United States Attorney's Office and the Attorney General. The mere fact that he was incarcerated does not excuse his failure of due diligence to effect proper and timely service of process. As a matter of law all prior attempts at personal service on Scalet were deficient. Powell knew or should have known this when each of the Returns of Service were forwarded to him from the U.S. Marshall. Powell specifically admits he received Returns of Service. Therefore, this action against federal defendant Scalet, must be dismissed with prejudice. Respectfully submitted this 19th day of July, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/ John R. Mayfield JOHN R. MAYFIELD Assistant U.S. Attorney

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CERTIFICATE OF SERVICE I hereby certify that on July 19, 2006 , I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Timothy James Bojanoski Daniel Patrick Struck Jones, Skelton & Hochuli, PLC 2901 N. Central Ave, Suite 800Phoenix, Arizona 85012 Attorneys for Defendants Carson, Gluch, Talamantes, Miles, Ponce s/John R. Mayfield Office of the U.S. Attorney I hereby certify that on June 5, 2006, I served the attached document by mail, on the following, who are not registered participants of the CM/ECF System: Charles (Carlos) Arthur Powell # 10090-023 D/U Federal Correctional Institution Victorville Medium # 1 P.O. Box # 5300 Adelanto, California 92301-5300 s/ John R. Mayfield Office of the U.S. Attorney

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