Free Motion to Dismiss Case/Lack of Jurisdiction - 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

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

CIV 03-1819-PHX-JAT(LOA) 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 moves 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. This Court lacks personal jurisdiction over this defendant as the plaintiff has 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 motion is supported by the attached Memorandum of Points and Authorities and exhibits.

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Respectfully submitted this 5th day of June, 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 PROCEDURAL BACKGROUND On September 17, 2003 the plaintiff, Raul Ernesto Alonzo, aka Carlos Arthur Powell (Powell) filed his Complaint against Earl R. Scalet, INS Investigator, Eloy Detention Center, in both his official and individual capacities along with other named defendants. Powell's Complaint was based upon alleged violations of 42 U.S.C.§ § 1983 and 1985. Powell demanded $100,000.00 from each defendant in their individual capacity for retaliation and $1,000,000.00 in compensation against each defendant for allegedly placing him in danger of injury from other inmates. Docket Entry (DE) # 1; See also Memorandum of Law in Support dated November 13, 2003 at pp. 15-16 (DE# 3); Supplemental Memorandum of Law In Support of Complaint dated November 31, 2003 at pp. 23-24 (DE# 4). Rule 4(m),F.R.Civ.P., requires service of process of the summons and Complaint within 120 days from filing. In this matter that date would have been January 16, 2004. Prior to December 29, 2003 Powell did not even attempt service on Scalet, the United States Attorney's Office or the Attorney General as required by Rule 4(e) and 4(i)(2)(B). On December 29, 2003, the Court entered an Order (DE# 5) advising Powell that service of process must be accomplished within 120 days from the filing of the Complaint(January 16, 2004) or within 60 days of the Court's Order. ( February 28, 2004) which ever was later. The Order also set forth the requirements for service of process (Order ¶ 6 p. 6).
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Powell was advised of possible dismissal for failure to serve (Order ¶ 6, p. 6) and for failure to comply with Court Orders citing Rule 41 (b), F.R.Civ.P. (Order ¶ F, pp. 5-6). Further, the Order required Powell to prepare service packets . The U.S. Marshall Service would notify the named defendants of the commencement of the action and request waivers of service of the summons and Complaint pursuant to Rule 4 (d), F.R.Civ.P.1 If a waiver of service was not received by the U.S. Marshall within 30 days, then the Marshall was ordered to personally serve copies of the Summons, Complaint and a copy of the Order upon any Defendant who did not waive service of process. (Order ¶ 8, pp. 7-8). 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 served on April 9, 2006 and the Attorney General on May 22, 2006. (DE #'s 182, 185, 186). On January 7, 2004 Powell filed a Motion to Amend his Complaint. There was no proposed Complaint attached to the Motion. (DE # 7). This motion was denied on May 26, 2004 (DE# 26) without prejudice for failure to attach a copy of the proposed Amended Complaint. (DE# 26). On March 18, 2004 the U.S. Marshall filed a Return of Service as to Defendant Scalet. The Process and Receipt Form stated that service was requested on Earl R. Scalet, Eloy, D.C. 1705 E. Hanna Rd 85231. The Return of Service indicated that " service was via signed return receipt (green card), this date." The attached green card indicted that on or about March 7, 2004, Jacque Hahn, "Department of Homeland Security District Counsel, P.O. Box 25158, Phoenix, Arizona 85002 ATTEN; C/O Patricia Vroom," signed the return receipt card. (DE #16, attachment).

A party allowed to proceed in forma pauperis is entitled to service by the U.S. Marshal. 28 U.S.C. § 1915(d); Fed.R.Civ.P. 4(c)(2).
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On June 9, 2004, Powell filed a Motion to Amend his Complaint and attached a copy of the proposed First Amended Complaint. (DE# 32) On June 9, 2004, Powell filed a " Motion to Clerk for Issuance of Default against Defendant Earl R. Scalet" for failure to answer or respond to the Complaint. (DE# 30). Powell asserted that "Earl Scalet was served more than 60 days ago and nothing has been filed." On June 18, 2004 the Court denied the "Motion to Clerk for Issuance of Default against Defendant Earl R. Scalet." (DE# 38). In the Order (¶ D, p.6) the Court stated: Plaintiff moves for entry of default against Defendant Scalet for failure to answer or respond to the Complaint. However, the original Complaint has been superceded by the Amended Complainant is thus no longer an active leading to which Scalet is required to respond. Accordingly, Plaintiff's Motion for Entry of Default (Doc. No. 30) will be denied. Further, in paragraph G of the Order, Powell was again advised of possible dismissal of the lawsuit pursuant to Rule 41(b), F.R.Civ.P. should he fail to comply with the Orders of the Court. Finally, in paragraphs 8-12 on pages 9 and 10 of the Order, the Court repeated it's prior Orders regarding the service of process. Powell was advised that within 120 days of the filing of the Amended Complaint or within 60 days of the Order, which ever was later, that service of the Summons and First Amended Complaint was to be accomplished on Defendant's E. Scalet, Stella Ponce, Escort Officer John Doe, and Desk Security Officer Robert Doe. If a defendant did not waive service within 30 days, personal service in accordance with Rule 4(e), F.R.Civ.P. would be required. The U.S. Marshall was to provide service of process. On June 18, 2004 the Clerk of Court filed the First Amended Complaint. (DE # 19). Therefore the deadline for service of the First Amended Complaint was October 17, 2004. On July 9, 2004, Powell filed an "Objection to the Court's Order in as far as the
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Defendant Earl R. Scalet." In this motion Powell stated: 1.) That the case was commenced and served on or about the first part of March 2004. The defendants had ample time to file a response, answer to the allegations. 2.) All the named defendants had diligently filed their notice of Appearance and answer in accord the F.R.Cv.P. Rule 5 except for the named Earl R. Scalet, will being on notice had intentionally refused to file either a notice nor response. 3.) In the Court's Order, it addressed the issue with an improper guise. First and foremost, the Defendant had already failed to timely file. Second although the plaintiff had been allowed to file an Amended Complaint the failure of timely filing the answer would be such as to devest (sic) the defendant from a second or another chance to respond. The defendant Earl R. Scalet failed to defendant (sic) and in so doing has waived the right to respond. The allegations as to this defendant is supported by his failure to respond." On July 19, 2004 an acceptance/acknowledgment of service of summons, Complaint and order by Certified mail upon Jacque Hahn for Defendant E. Scalet on July 12, 2004 was field with the Clerk of Court. (DE # 51). On October 28, 2004 Powell filed a "Request for Entry of Default Against Earl Scalet and Stella Ponce." (DE # 80). In the Motion Powell stated: Plaintiff now asserts that Earl Scalet was properly served in ths case twice. That he has failed to answer or file any document to this court, which can only be construed as all facts stated are true. On November 5, 2004, Powell filed a "Supplemental Notice to the Plaintiff's Motion in Rebuttal to Defendant Stella Ponce's Claim for Dismissal." (DE # 82). Powell stated he: ... is not liable for the mistakes of the Marshal when the plaintiff has no control of the action of that agency. ... Plaintiff has indicated to the court his reliance on service by the Marshals and he timely requested that the Marshals effect personal service. ... There is clear evidence that the plaintiff has effected service properly, and that there was an individual that was served at Department of Homeland Security; Earl Scalet, who was served proper. Motion at pp. 1-3. On December 29, 2004 Powell filed a Motion for Default and Request for Relief. (DE # 97). Powell stated: 2.) The defendant Earl R. Scalet was properly effecuated with service on two different accessions and to date has not filed any papers in violation of the Federal Rules of Civil Procedures. There has been both the original Complaint an th Amended Complaint which were served. The defendant has not filed any type of reply, and has forthwith simply ignored
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the Court action as if he is above the law. ... 5.) Plaintiff has requested that a judgement in monitary value be fixed against the defendant, in accord to the relief stipulated in the complaint. On November 3, 2005, the Court entered an Order (DE # 132) which stated, in part: DEFENDANT SCALET Plaintiff moves for default judgment against Scalet, who has never appeared in this matter. Scalet was also served through the Marshals by certified mail. However, because Scalet has never appeared in this action, even to contest service, the Court finds that an entry of default would be improper. The Court must assume that Scalet has not received notice of this suit and orders Plaintiff to provide a service packet with a different address where Scalet can be personally served within 10 days from the date of this order. If Scalet cannot be located, the Court will dismiss him from the action. The Order directed the Plaintiff to file his Second Amended Complaint within 10 days from the date of the Order and provide a service packet with a different address where defendant Scalet can be personally served. Order, pp. 6-7. On November 28, 2005 Powell filed his Second Amended Complaint. (DE # 145). On December 12, 2005, Powell filed a Motion for Leave to file for Sanction or in the alternative, Court Order for Cost due to Jacque Hahn non-party Intentionally and Knowingly Obstructing Justice. (DE # 148). In this Motion Powell states: 1.) Plaintiff had file the case, which is before the Court during his time in SHU, Eloy Detention Center. That case was ordered to be served by the marshals, and the marshals had secured the defendants at addresses, and served by certified mail. 2.) Upon the certified letter being processed, the marshal had re-addressed the item to the erroneous address, which was another department with the Homeland Security, Department of Justice. The certified mail was addressed to the Defendants, at no time was it addressed to Jacque Hahn, or to anyone that Jacque Hahn had been given authority to accept service for nor anyone that worked at the Department where Jacque Hahn worked. [Emphasis added]. 3.) Jacque Hahn knew that the certified mail was not addressed to him, or anyone that was employed at Homeland Security Division of Immigration and Customs Enforcement. Therefore, there was nothing in or on the certified letter which gave Jacque Hahn the illusion he was authorized to take service. Powell then requests sanctions be entered against Hahn for "... knowingly and intentionally deceived the marshalls forpurpose (sic) or personal gain or for the gain of others while depriving the plaintiff of his day in court."
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On March 7, 2005, Powell filed a motion entitled Motion for Court Order to Serve Earl R. Scalet, or in the Alternative, that the Court Order Scalet Served by Court Accepting Service was made by Jacque Hahn, as an Authorized Authority to Accept Serve for INS/Agents. " (DE # 173). On March 15, 2006, the Court entered an Order in response to Powell's Motion (DE#173). In that Order the Court stated that it was undisputed that Scalet has not yet been personally served with process and therefore an entry of default is improper. Further, that Scalet still has not been brought within the jurisdiction of this Court. The Order directed Philip C. Crawford, the ICE Arizona Field Office Director, to provide under seal that last known address of Earl Scalet. On April 11, 2006, Powell filed a "Motion for Clarification and Correction and Motion for Leave to file a Challenge to the Court's Interpretation as to the Service of Scalet." (DE# 183). ARGUMENT I. Personal Service and Service on the United States is Required for a federal employee sued in Bivens. In his September 17, 2003 Complaint, Powell sued federal defendant Earl R. Scalet, who he expressly states is an "ICE Investigator," in his personal and official capacity. In contrast to an official capacity claim against a federal employee, which seeks relief from the United States, an individual capacity claim against a federal employee seeks recovery from the personal financial assets of the employee. Hafer v. Melo, 502 U.S. 21, 25 (1991). It is well-settled that personal service is required in Bivens actions. 2 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

Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).
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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). Scalet was not served within 120 days from the filing of the original Complaint or any subsequent Amended Complaint. Nevertheless, the Court has already exercised its discretionary authority on behalf of the plaintiff by extending the time, nunc pro tunc, for personal service, apparently pursuant to Rule 4(m),F.R.Civ.P., by granting an additional 120 days for service of the Complaint.[DE# 5]. Further, Powell attempted service on Scalet within the 120 days following the December 29, 2003 Order was legally insufficient. Although there was a return of service by certified mail on Scalet dated March 18, 2004, no waiver of service of process was forthcoming within to thirty day period (April 17,2004), allowed by Rule 4(d)(2)(F). Although there was a return of service by certified mail on Scalet dated July 19, 2004, no waiver of service of process was forthcoming within the thirty day period (August 12, 2004), allowed by Rule 4(d)(2)(F). 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 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). It has long been the rule in the Ninth Circuit that plaintiffs filing Bivens action against federal employees must obtain personal service, and not constructive service at the place of employment. Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir.1988)3. In
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"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 8

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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 fact that plaintiff attempted to sue Scalet in his "official capacity" provides no safe harbor. First, the plaintiff cannot assert claims regarding constitutional violations against Scalet in his "official capacity." Rivera v. United States, 924 F.2d 948, 951 (9th Cir., 1991). Second, Powell cannot sue Scalet in his "official capacity" pursuant to Bivens 4 as such an attempt is, as a matter of law, a Bivens action against the United States and the United States has not waived sovereign immunity for Bivens actions. Thomas-Lazear v. F.B.I., 851 F.2d 1202, 1207 (9th Cir.1988); Arnsberg v. United States, 757 F.2d 971, 980 (9th Cir.1984); Holloman v. Watt, 708 F.2d 1399, 1401-02 (9th Cir.1983). In any event, service of 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."). 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). Furthermore, the Ninth Circuit has specifically rejected an argument that

action against the named defendants. Holloman v. Watt, 708 F.2d 1399, 1402 (9th Cir.1983) (citing cases), cert. denied, 466 U.S. 958, 104 S.Ct. 2168, 80 L.Ed.2d 552 (1984); Lauritzen v. Lehman, 736 F.2d 550, 558 n. 10 (9th Cir.1984)." The First and Second Amended Complaints against Scalet were based on Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).
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"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."). Although there is a "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). Furthermore, there is no evidence before this court that Scalet evaded service. In fact, he made himself available for personal service on April 5, 2006. Scalet Declaration. As a matter of law all prior attempts at personal service were deficient. As a result, the Bivens claim against defendant Scalet must be dismissed. Additionally, not only must the federal employee be personally served, the United States must be properly served as well. Rule 4(i)(2)(B) (United States Attorney; Attorney General). Whale v. United States, 792 F.2d 951, 953(9th Cir., 1986);Light v. Wolf, 816 F.2d 746, 749 (D.C.Cir. 1987). Prior to April 9, 2006 the United States Attorney's Office was not served with a copy of any Complaint filed in this lawsuit. The Attorney General was not served until May 22, 2006. Powell has failed to effect timely service of process against federal defendant Scalet, the United States Attorney's Office and the Attorney General of the United States. Therefore, this action against federal defendant Scalet, must be dismissed with prejudice. Likewise, Scalet is entitled to dismissal for want of personal jurisdiction and for Powell's failure to comply with the Court's Order's of December 29, 2003 and June 18, 2004, by failing to obtain personal service on Scalet. Where money damages are sought through a Bivens action personal service is necessary to obtain jurisdiction over a
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defendant in his capacity as an individual. 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). II. Lack of good cause to excuse dismissal. When challenged, the burden is upon the plaintiff to establish that service of process has been timely and properly served and that personal jurisdiction has been established. Butcher's Union Local No. 498 v. SDC Inv. Inc., 788 F.2d 535, 538 (9th Cir.1986). Hirsch v. Blue Cross, Blue Shield of Kansas City, 800 F.2d 1474, 1477 (9th Cir.1986); Data Disc, Inc. v. Systems Technology Assocs., Inc., 557 F.2d 1280, 1285 (9th Cir.1977). To avoid dismissal for failure to the summons and Complaint in a timely and proper fashion, a plaintiff must demonstrate a justifiable excuse for the defect in service. Whale, 792 F.2d at 953. Mere inadvertent error or ignorance of the governing rules does not constitute good cause sufficient to excuse the lack of timely and proper service. Hamilton v. Endell, 981 F.2d 1062, 1065 (9th Cir., 1992). 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 service of process. Puett v. Blandford, 912 F.2d 270, 273-76 (9th Cir 1990) (Prisoner required to diligently pursue proper service.) 5 ; 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). At no time prior to April 5, 2006, was there any documentation in the record that Scalet had signed a waiver of service or that personal service had been accomplished.

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.
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See, Scalet Declaration. Furthermore, at no time prior to April 9, 2006 was service even attempted on the United States Attorney's Office or prior to May 22, 2006 on the Attorney General. With respect to defendant Scalet, proper service of process was not effected within the deadlines established by the Court's Orders of December 29, 2003 and June 18, 2004 or with 120 days from the filing of the Second Amended Complaint. In fact Scalet was not personally served until April 5, 2006, two years, six months and 18 days subsequent to the filing of the Complaint and 127 days after the Second Amended Complaint. As a result, this Court lacks personal jurisdiction over defendant Scalet. Furthermore, since the plaintiff has failed to timely effect service of process Scalet, the United States Attorney's Office and the Attorney General, this matter must be dismissed pursuant to Rule 41(b) F.R.Civ.P. for failure to prosecute. Yourish v. California Amplifier, 191 F.3d 983, 986-90 (9th Cir.1999); Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir.1987)(Five factors to be considered.). CONCLUSION Powell received ample warnings form the Court and 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. Therefore Defendant Scalet must be dismissed from this lawsuit with prejudice. Respectfully submitted this 5th day of June, 2005. 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 June 5, 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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