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Potter v. Salida Police Department Officer Russell Johnson

United States District Court, D. Colorado

February 26, 2015

GINA POTTER, [1] Plaintiff,


NINA Y. WANG, Magistrate Judge.

This matter comes before the court on Defendant Russell Johnson's Motion to Dismiss [#36] due to insufficient process and insufficient service of process, filed on March 3, 2014. This motion was referred to the Magistrate Judge pursuant to the Order of Reference dated March 11, 2014. [#37].

The court has carefully considered the motions and related briefing, the entire case file, and the applicable case law. For the following reasons, I RECOMMEND that Defendant Russell Johnson's Motion to Dismiss be DENIED, but ORDER the Plaintiff to Show Cause why this action should not be dismissed for want of prosecution.


The following alleged facts give rise to this action, and are recited from the Complaint. On January 16 2011, Plaintiff Gina Potter ("Plaintiff" or "Ms. Potter") stayed at a Comfort Inn hotel in Salida, Colorado. [#1, ¶ 10]. In the early morning hours of January 17, Defendant Russell Johnson ("Officer Johnson") arrived at the Comfort Inn to perform a welfare check on her. [ Id. at ¶ 11]. Defendant Anne Marie Smith ("Defendant Smith" or "Ms. Smith"), an employee of the Comfort Inn, granted Officer Johnson entry into Ms. Potter's room [ Id. ] After Officer Johnson left, Ms. Potter complained to Ms. Smith about the entry into her room. [ Id. at ¶ 12]. Ms. Smith then called the police a second time, and reported that Ms. Potter was "out of control." [ Id. ] Upon his return to the Comfort Inn, Officer Johnson began screaming at her. [ Id. at ¶ 14]. When Ms. Potter indicated that she was going to get into her truck, Officer Johnson followed her, and a physical confrontation ensued. [ Id. at ¶ 16]. During that confrontation, Officer Johnson forcefully yanked her out of her truck, causing Ms. Potter physical injury and resulting in an arrest for driving under the influence ("DUI charge") (despite the fact that she had not been driving). [ Id. ] Ultimately, on January 23, 2012, Ms. Potter was acquitted of the DUI charge, despite the fact that both Officer Johnson and Ms. Smith testified untruthfully. [ Id at ¶ 18].

Ms. Potter filed her Complaint in this action on January 17, 2013 [#1], claiming violations of her Fourth Amendment rights against Officer Johnson pursuant to 42 U.S.C. § 1983 and abuse of process against Ms. Smith and Defendant DTJ Investment LLC d/b/a Comfort Inn ("Comfort Inn"). Just a few weeks after the filing, Ms. Potter's counsel sought to withdraw from representation, explaining that he "was hired by Ms. Potter to prepare and file the complaint in the instant case, with the understanding that Ms. Potter would have to find alternative counsel to litigate this matter." [#6, at 1]. On March 13, 2013, after briefing and a hearing, the court granted Ms. Potter's counsel leave to withdraw ("Withdrawal Order"). [#16]. The Withdrawal Order cautioned Ms. Potter that, due to her pro se status, she was personally responsible for complying with all court orders and time limitations established by any applicable rules. [ Id. ] In that same order, the court granted Ms. Potter an extension up to and including May 31, 2013 to effect service of process on all Defendants and set a Scheduling Conference for July 17, 2013. [ Id. ]

On June 19, 2013, Comfort Inn and Ms. Smith answered Plaintiff Ms. Potter's Complaint. [#17]. Officer Johnson, however, did not answer or otherwise respond to the Complaint. On July 16, 2013, Plaintiff Ms. Potter filed an emergency motion for extension of time and to reset the scheduling conference set for the following day. [#22]. Ms. Potter requested an extension of sixty to ninety days in order to secure representation and to finish litigation in a separate proceeding. [ Id. at 1-2]. In support of her request, Plaintiff stated that she was financially exhausted and emotionally devastated as a result of her involvement in other legal disputes, which she characterized as the "direct repercussions" of defendants' actions. [ Id. ]

The following day at the appointed time, the court held a scheduling conference in this matter. [#20]. Ms. Potter did not appear, and the court noted that no proof of service as to Officer Johnson had yet been filed with the court. [ Id. ]. Moreover, Ms. Potter did not participate in preparation of the joint prepared scheduling order. [ Id. ] In light of Ms. Potter's failure to effect timely service on all Defendants and otherwise comply with the court's prior Withdrawal Order, the court subsequently accordingly issued an Order directing Plaintiff Ms. Potter to "show cause, if any there be, in writing and on or before July 31, 2013... for lack of prosecution" and failure to comply with the Court's prior withdrawal Order. [#21] ("Show Cause Order").

On July 26, 2013, Ms. Potter filed an affidavit of service executed by Plaintiff's process server, indicating that the Summons, Complaint, and Civil Cover Sheet in this action had been left at the Salida Police Department on May 31, 2013 with Chief Terry Clark. [#25]. The affidavit indicates that the process server was told by Mr. Clark that Defendant Mr. Johnson was on vacation and would not be returning to work until June 10, 2013. [ Id. ] The next day, Ms. Potter responded to the court's Show Cause Order. [# 27]. She indicated that she was interested in prosecuting the claims raised by her Complaint, but had been hindered in doing so by her desire to find substitute counsel. [#27]. Ms. Potter also suggested that her "attention ha[d] also been focused on "other life events, " including defending herself against the DUI charge and finalizing a divorce involving minor children. [ Id. ]

On August 22, 2013, Magistrate Judge Boland recommended that the case be dismissed without prejudice for lack of prosecution, and failure to comply with the court's Withdrawal Order. [#30]. On September 6, 2013, Ms. Potter timely objected to the Judge Boland's recommendation. [#31]. Judge Brimmer sustained Plaintiff's objection by Order dated February 20, 2014 (the "February 20 Order") [#33]. The court found that "given that plaintiff has manifested her intent to pursue this litigation and given that the external events that have interfered with her ability to do so appear to be subsiding, it is likely that a lesser sanction would suffice to ensure plaintiff's compliance with all future deadlines and Court orders." [ Id. at 6]. Of particular note to the instant disposition, the February 20 Order noted the widely the well-recognized principle that "[a] signed return of service... constitutes prima facie evidence of valid service, which can be overcome only by strong and convincing evidence.'" [ Id. at 4-5 n.1 ( citing Gates v. Syrian Arab Republic, 646 F.Supp.2d 79, 85-86 (D.D.C. 2009)].

On March 3, 2014, Defendant Mr. Johnson filed the Motion to Dismiss on the ground of improper service [#36] that is the subject of this Recommendation. Ms. Potter did not respond.


The court may dismiss an action pursuant to Rule 12(b)(5) for insufficient service of process. "Effectuation of service is a precondition to suit..." Jenkins v. City of Topeka, 136 F.3d 1274, 1275 (10th Cir. 1998). Without proof of service, the Court lacks personal jurisdiction over the Defendant. Oklahoma Radio Associates v. FDIC, 969 F.2d 940, 943 (10th Cir. 1992). A "Rule 12(b)(5) motion challenges the mode of delivery or the lack of delivery of the summons and complaint." 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure 3D § 1353. In opposing a motion to dismiss for insufficient service of process, "plaintiff bears the burden of making a prima facie case that he has satisfied statutory and due process requirements so as to permit the court to exercise personal jurisdiction over the defendant." Allen v. United Properties & Const., No. 07-cv-00214-LTB-CBS, 2008 WL 4080035, at *9 (D. Colo. Sept. 3, 2008) (unpublished) (quoting Fisher v. Lynch, 531 F.Supp.2d 1253, 1260 (D. Kan. 2008). Plaintiff must demonstrate that the procedure employed by him to effect service satisfied the requirements of Rule 4 of the Federal Rules of Civil ...

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