SCOTT T. VARHOLAK, Magistrate Judge.
This matter is before the Court on the Motion to Dismiss Plaintiff's Third Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(1) and (6), filed by Defendants Unknown El Paso County Sheriff's Deputies, Unknown Personnel of the El Paso County Bomb Squad, and Unknown Personnel of the El Paso County Hazmat Team (collectively, the "El Paso Defendants") [#32] (the "Motion"). The Motion has been referred to this Court. [#33] This Court has carefully considered the Motion and related briefing, the entire case file and the applicable case law, and has determined that oral argument would not materially assist in the Motion's disposition. For the following reasons, the Court
On or about June 30, 2016, an RV owned by Plaintiff Arick Justin Rinaldo was lawfully parked at a scenic overlook in or near the City of Manitou. [#20 at 4] On that day, upon exiting and locking the RV, Plaintiff was confronted by the defendant unknown El Paso County deputies and bomb squad personnel, who took possession of the keys to the RV. [Id.] Even though they were in possession of the keys, the unknown El Paso County deputies and bomb squad personnel used a bomb squad robot or other device to forcibly smash and break into Plaintiff's RV without a warrant. [Id. at 4, 5] As a result, the door and frame of the RV were smashed and the body of the RV buckled. [Id. at 4] The unknown El Paso County deputies and bomb squad personnel, along with the defendant unknown personnel of the Colorado State Patrol Hazmat Team and unknown personnel of the El Paso County Hazmat Team, then conducted a warrantless search of the contents of the RV, tossing all the items in the RV and destroying some of the property contained therein. [Id.]
Plaintiff alleges that Defendant Trooper Schmidt and the defendant unknown Manitou Springs officers or deputies seized him by force and illegally detained him for approximately six to seven hours first in Trooper Schmidt's vehicle and then in the Manitou police station. [Id. at 4, 7] Plaintiff contends that unspecified defendants made defamatory and libelous statements to the press that the RV was a "Rolling Meth Lab," that Plaintiff had barricaded himself in the RV, and that Plaintiff's girlfriend had fled on foot. [Id.] Nothing was found in the RV to support the claim that the RV was used to manufacture methamphetamines. [Id. at 7]
On June 28, 2017, Plaintiff filed this lawsuit. [#1] On August 2, 2017, Plaintiff filed an amended complaint. [#10] On August 4, 2017, the Court ordered Plaintiff to file an amended complaint utilizing the court-approved prisoner complaint form. [#11] On September 1, 2017, Plaintiff filed the Amended Complaint. [#12] On October 5, 2017, the Court issued an order pointing out deficiencies in the Amended Complaint and ordering Plaintiff to file a second amended complaint. [#13] On November 2, 2017, Plaintiff filed his Second Amended Complaint. [#14] On December 12, 2017, the Court issued an order pointing out deficiencies in the Second Amended Complaint and ordering Plaintiff to file a third amended complaint. [#16]
On February 8, 2018, Plaintiff filed his Third Amended Complaint. [#20] On February 26, 2018, the Court issued an order pointing out deficiencies in the Third Amended Complaint and ordering Plaintiff to file a fourth amended complaint within 30 days of the order. [#21] Because Plaintiff failed to file a fourth amended complaint, the Court conducted its review pursuant to 28 U.S.C. § 1915A on the allegations contained in the Third Amended Complaint.
On May 9, 2018, the Clerk of Court arranged for service of the Third Amended Complaint on Defendants. [#24] On that same date, Peter Lichtman of the Office of the El Paso County Attorney (the "El Paso Attorney's Office") purported to waive service of process on behalf of the Unknown El Paso County Sheriff's Deputies and the Unknown Personnel of the El Paso County Bomb Squad. [#25] Neither the specific sheriff's deputies nor the specific bomb squad personnel are identified in the waiver. [Id.] On May 18, 2018, Mr. Lichtman and his colleague at the El Paso Attorney's Office, Kenneth Hodges, purported to enter their appearances on behalf of "Defendants Unknown El Paso County Sheriff's Deputies, Unknown Personnel of the El Paso County Hazmat Team and Unknown Personnel of the El Paso County Bomb Squad." [#28, 29] The Notices of Appearance failed to identify any specific sheriff's deputies, bomb squad personnel, or hazmat team personnel. [Id.]
On June 7, 2018, the U.S. Marshals Service filed Unexecuted Process Receipts and Returns for Defendant Trooper Schmidt and Defendants Unknown Deputies of the Manitou Springs Police Department (the "Unknown Manitou Springs Defendants"). [#30, 31] The Return for Trooper Schmidt indicated that he could not be served at the provided address, because Trooper Schmidt "is retired from Colorado State Patrol" and his "current whereabouts are unknown." [#30 at 1] The Return for the Unknown Manitou Springs Defendants indicated that they could not be served by the Marshal because the Unknown Manitou Springs Defendants are "not known to the Manitou Springs Police Department." [#31 at 1] On August 21, 2018, the Marshal filed Returns with regard to Defendants Unknown Personnel of the Colorado State Patrol Hazardous Materials Team and Defendants Unknown Personnel of the Colorado State Patrol (collectively, the "Unknown Colorado Patrol Defendants"), indicating that they could not be served because the Colorado State Patrol was "unable to determine who to serve." [#35, 36]
On July 9, 2018, the El Paso Attorney's Office filed the instant Motion, on behalf of the El Paso Defendants without specifying the names of any of the specific sheriff's deputies, bomb squad personnel, or hazmat team personnel. [#32] On September 11, 2018, Plaintiff filed his response to the Motion.
As noted above, the El Paso Attorney's Office purported to accept service, enter notices of appearance, and file the instant Motion on behalf of the El Paso Defendants without ever specifying the identifies of the defendants, who were identified in the Third Amended Complaint (and the documents filed by the El Paso Attorney's Office) only as Unknown El Paso County Sheriff's Deputies, Unknown Personnel of the El Paso County Bomb Squad and Unknown Personnel of the El Paso County Hazmat Team. Neither the El Paso Attorney's Office nor Plaintiff has provided any "procedural basis on which an unidentified party can appear in a lawsuit and assert a defense without revealing his or her identity."
Yocom, 257 F.3d at 1172.
Here, no party has applied for leave of the Court to allow the El Paso Defendants to proceed anonymously, nor does there appear to be any grounds for them to do so.
Accordingly, unless or until the El Paso Defendants are identified by name, it appears that this Court lacks jurisdiction to decide the Motion.
Pursuant to Federal Rule of Civil Procedure 4(m):
As noted above, the Marshals Service filed an unexecuted return of service for Trooper Schmidt on June 7, 2018, notifying Plaintiff and the Court that Trooper Schmidt could not be served at the provided address, because Trooper Schmidt "is retired from Colorado State Patrol" and his "current whereabouts are unknown." [#30] "A pro se plaintiff proceeding in forma pauperis is entitled to rely on the Clerk of the Court and/or U.S. Marshal for service of the summons and complaint, but only insofar as the court is provided proper contact information for the defendant to be served." Locke v. FedEx Freight, Inc., No. 12-CV-00708-REB-MEH, 2012 WL 7783085, at *12 (D. Colo. Aug. 31, 2012), report and recommendation adopted, 2013 WL 1163974 (D. Colo. Mar. 21, 2013). The United States Marshal "is not responsible for lack of service where a plaintiff does not provide correct information required for service." Pemberton v. Patton, 673 F. App'x 860, 864 (10th Cir. 2016). Instead, "[i]t is the plaintiff's responsibility to provide the United States Marshal with the address of the person to be served." Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1113 (10th Cir. 2007).
Over eight months have transpired since the operative complaint was filed [#20], and over 140 days have transpired since the Marshals Service provided notice that Trooper Schmidt could not be served at the address provided in the operative complaint [#30]. At the August 7, 2018 Status Conference, this Court notified Plaintiff that Trooper Schmidt had not been served and that it was Plaintiff's responsibility to provide a valid address for service. [#34] As of the filing of this Order, Plaintiff has not provided an updated address for service on Trooper Schmidt; nor is there any indication in the record that he has taken any action to try to locate one.
Pursuant to Local Rule 41.1:
D.C.COLO.LCivR 41.1.
Accordingly, because over 90 days have passed since Plaintiff filed the operative complaint in this matter and since the Marshalls Service notified Plaintiff that Trooper Schmidt could not be served at the address provided,
As noted above, on June 7, 2018, the U.S. Marshals Service filed an unexecuted return of service for Unknown Manitou Springs Defendants, notifying Plaintiff and the Court that the Unknown Manitou Springs Defendants could not be served by the Marshal because they are "not known to the Manitou Springs Police Department." [#31 at 1, 2] Similarly, on August 21, 2018, the Marshals Service filed unexecuted returns for the Unknown Colorado Patrol Defendants, notifying Plaintiff and the Court that the Unknown Colorado Patrol Defendants could not be served by the Marshal because the Colorado State Patrol was "unable to determine who to serve." [#35, 36] Although, as acknowledged above, courts have permitted plaintiffs to identify defendants in the complaint by pseudonym where the identity of the alleged defendants is not known prior to the filing of the complaint, in such circumstances, the plaintiffs must diligently work to obtain the identities of such individuals and have them served. See supra note 7.
Here, approximately 20 months have transpired since Plaintiff first filed this lawsuit, and there is no indication in the record that Plaintiff has undertaken any efforts to try to identify the names of the Unknown Manitou Springs Defendants or the Unknown Colorado Patrol Defendants. Furthermore, over eight months have transpired since the operative complaint was filed [#20], and over 60 days have transpired since the Marshals Service provided notice that the Unknown Manitou Springs Defendants and the Unknown Colorado Patrol Defendants could not be served at the addresses provided in the operative complaint [#31, 35, 36] At the August 7, 2018 Status Conference, this Court notified Plaintiff that he was responsible for identifying and providing a valid address for service upon the Unknown Manitou Springs Defendants or the Unknown Colorado Patrol Defendants. [#34] As of the filing of this Order, Plaintiff has not provided the identifies of these defendants or a revised address for them; nor is there any indication in the record that he has taken any action to try to locate this information. Dismissal thus appears appropriate under Rule 4(m) and D.C.COLO.LCivR 41.1.
The Court further observes that, even if Plaintiff were now able to specifically identify the Unknown Manitou Springs Defendants or the Unknown Colorado Patrol Defendants, Plaintiff's claims against them appear to be time-barred.
Here, the police actions in question all took place on June 30, 2016. [#20 at 14] Absent the application of a tolling doctrine, the statute of limitations for any Section 1983 claims thus expired on June 30, 2018. Although Plaintiff named the Unknown Manitou Springs Defendants and the Unknown Colorado Patrol Defendants in a complaint filed prior to the expiration of the statute of limitations [#20], amendments to specifically identify defendants whose identity was unknown at the time of the filing of the complaint generally do not relate back to the time of filing of the original complaint pursuant to Federal Rule of Civil Procedure 15(c)(1)(C). See Garrett v. Fleming, 362 F.3d 692, 697 (10th Cir. 2004); Trujillo v. City & Cty. of Denver, No. 14-CV-02798-RBJ-MEH, 2016 WL 5791208, at *9 (D. Colo. Sept. 7, 2016).
Accordingly,
For the foregoing reasons,
