Opinion
Civil Action No. 18-cv-01098-PAB-KMT
05-14-2019
MAXINE SHEPARD, Plaintiff, v. UNITED STATES DEPARTMENT OF VETERAN AFFAIRS, and UNITED STATES DEPARTMENT OF DEFENSE, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This case comes before the court on the Order to Show Cause filed on April 30, 2019 (Doc. No. 27) and Plaintiff's response thereto filed on May 7, 2019 (Doc. No. 28).
Plaintiff, proceeding pro se, filed her original Complaint on May 8, 2018, asserting jurisdiction pursuant to the following five federal statutes: (1) 28 U.S.C. § 1346(b), jurisdiction as to the United States as a Defendant; (2) 38 U.S.C.§ 1151, benefits for veteran's disability; (3) 42 U.S.C § 12182, Americans with Disabilities Act prohibition of discrimination by a public accommodation; (4) 42 U.S.C. § 1983, civil action against a state actor; and (5) 7 U.S.C. § 2131-§ 2157, the Animal Welfare Act of 1966. (Doc. No. 1 [Compl.].) On May 17, 2018, Plaintiff filed her First Amended Complaint, in which her allegations against the defendants are contained in the following paragraph:
The Defendants have engaged in outrageous, negligent and illegal conduct that should be punished to the maximum extent under the law. The Defendants, the Department of Veterans Affairs, unlawfully implanted Plaintiff, Maxine Shepard with microchips, caused harm to her daughter, and unlawfully entered Plaintiff's home and implanted Plaintiff's service animal with a microchip on the right side of his skull.(Doc. No. 6 [Am. Compl.].)
In Plaintiff's original Complaint, Plaintiff alleges she was injured "as a result of her surgery at the VAMC [Veterans Affairs Medical Center] in 2005 by a physician who during the course and scope of his duties, unlawfully and without informed consent implant[ed] the Plaintiff with microchips." (Id. at 2, ¶ 9(b).) Plaintiff states the surgery occurred at the VAMC in Little Rock, Arkansas. (Id. at 3, ¶ 9(c).) Plaintiff also claims a microchip device was implanted at the VA Medical facility in Dallas, Texas. (Id. at 3, ¶ 11.) Plaintiff alleges,
For thirteen years, Plaintiff has been bound, enslaved by a government who sought to control her indefinitely. Control her thoughts, control who she talked to, control every move she made. And if she didn't talk, or act the way they approved of, all they had to do was send a beam to her skull which penetrated her brain. All they had to do was change the frequency of the devices. According to the government pain was needed to change behavior. And according to them, I needed to experience lots of pain. Thirteen years of pain to be exact.(Id. at 3, ¶ 9(d).)
Chief District Judge Philip A. Brimmer dismissed Plaintiff's claims against another defendant, St. David's Medical Center, on March 19, 2019. (Doc. No. 25.)
On review of the docket in this matter, the court determined Defendants United States Department of Veteran Affairs and United States Department of Defense had not been served in accordance with Federal Rule of Procedure 4(m). Rule 4(m) provides,
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 that defendant or order that service be made within a
specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.Fed. R. Civ. P. 4(m).
The court issued an Order to Show Cause requiring Plaintiff to show cause in writing on or before May 10, 2019, why the claims and the case against Defendants United States Department of Veteran Affairs and United States Department of Defense should not be dismissed without prejudice pursuant to Rule 4(m) for lack of service.
In her response to the Order to Show Cause, Plaintiff states that the defendants should have been aware of the case against them because they were served with the original complaint and because she has served the defendants with every document she has filed. (Doc. No. 28 at 3.) The court notes that Plaintiff filed proofs of service indicating she had served the defendants by Federal Express on May 10, 2018. (Doc. No. 4 & 4-1.) However, Federal Rule of Civil Procedure 4(i) requires a plaintiff to serve a United States agency by serving the United States and also by sending a copy of the summons and of the complaint by registered or certified mail to the agency. Fed. R. Civ. P. 4(i)(2). Plaintiff did neither, and, as such, her service of her original complaint was improper. Moreover, Plaintiff admits she has not served the defendants with the First Amended Complaint, but nevertheless asserts the defendants should have been aware of the case pending against them and that neither defendant "has filed any motions of non-receipt of the Motions filed by [the] former defendant." (Doc. No. 28 at 3.)
Although Plaintiff is a pro se litigant, she is required to comply with the same rules of procedure governing other litigants, including Rule 4. Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992); DiCesare v. Stuart, 12 F.3d 973, 980 (10th Cir. 1993). Thus, Plaintiff's failure to complete proper service on Defendants within the time limits prescribed by Rule 4(m) is grounds for dismissal of her claims against them in the absence of justification for the failure. See Jones v. Frank, 973 F.2d 872, 873-74 (10th Cir. 1992). Plaintiff has failed to justify her failure to serve Defendants United States Department of Veteran Affairs and United States Department of Defense in the year since she filed her First Amended Complaint.
Accordingly, this court
RECOMMENDS that Plaintiff's claims against the remaining defendants, Defendants United States Department of Veteran Affairs and United States Department of Defense be dismissed without prejudice for failure to comply with Federal Rule of Civil Procedure 4(m).
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. "[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. One Parcel of Real Prop. Known As 2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (stating that a district court's decision to review a magistrate judge's recommendation de novo despite the lack of an objection does not preclude application of the "firm waiver rule"); One Parcel of Real Prop., 73 F.3d at 1059-60 (stating that a party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (holding that cross-claimant had waived its right to appeal those portions of the ruling by failing to object to certain portions of the magistrate judge's order); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (holding that plaintiffs waived their right to appeal the magistrate judge's ruling by their failure to file objections). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (stating that firm waiver rule does not apply when the interests of justice require review).
Dated this 14th day of May, 2019.
BY THE COURT:
/s/_________
Kathleen M Tafoya
United States Magistrate Judge