United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
JUDGE
Kathleen M Tafoya, 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] ¶ 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).)[1]
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 ...