Lopez v. United States

1 WO 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Manuel A Lopez, No. CV-21-00255-TUC-DCB 10 Plaintiff, ORDER v. United States of America, 13 Defendant.

15 On June 1, 2022, the Court reviewed the record and discovered approximately a year had passed since Plaintiff filed the Complaint on June 28, 2021, and he has failed to serve it or otherwise prosecute his case. The Court issued an Order directing the Plaintiff to show cause why the case should not be dismissed for lack of service and failure to prosecute. (Order (Doc. 4) (explaining service is required within 90 days of the filing of a Complaint) (citing Fed. R. Civ. P. 4(m)).

21 The Plaintiff has responded explaining that he attempted to serve the Director of the United States Veterans Affairs Medical Center at 3601 S. 6th Ave., in Tucson, Arizona, on June 28, 2021. His service materials were returned and marked “not deliverable as addressed.” He alleges he has been very ill since 2020, including having cancer and a serious prostrate condition. He has been unable to effectuate service but as his health improves, he “will be better able to address this case.” (Response (Doc. 5) at 4.)

27 The Court will not extend the time for service by a matter of years, but will allow Plaintiff another 30 days to serve the Complaint and Summons on the Defendant. While he names several VA Hospital employees in the Complaint, his Federal Tort Claims are alleged only against one Defendant: the United States Veterans Affairs Health Care System/Tucson Hospital.

4 To serve the United States and its agencies, a plaintiff must comply with Fed. R. Civ. P. Rule 4(i) of the Federal Rules of Civil Procedure. Rule 4(i) states in relevant part: 6 (1) United States. To serve the United States, a party must: 7 (A)(i) deliver a copy of the summons and of the complaint to the United States attorney for the district where the action is brought—or to an assistant United States attorney or clerical employee whom the United States attorney designates in a writing filed with the court clerk—or 11 (ii) send a copy of each by registered or certified mail to the civil-process clerk at the United States attorney's office; 13 (B) send a copy of each by registered or certified mail to the Attorney General of the United States at Washington, D.C.; . . .

15 [and] 16 (2) Agency; Corporation; Officer or Employee Sued in an Official Capacity. To serve a United States agency or corporation, or a United States officer or employee sued only in an official capacity, a party must serve the United States and also send a copy of the summons and of the complaint by registered or certified mail to the agency, corporation, officer, or employee.

21 The Court finds that Plaintiff has not served the United States and, at best, attempted service on the United States Agency, the VA Hospital. In order to effectuate proper service of process upon the VA, Plaintiff must serve the United States pursuant to Rule 4(i)(1) and also send a copy of both the summons and the Complaint by registered or certified mail to the VA. Fed. R. Civ. P. 4(i)(2). Although Plaintiff is proceeding as pro se, Plaintiff should be aware that he "must follow the rules of procedure," and "the district court has no duty to act as a pro se party's lawyer." United States v. Hung Thien Ly, 646 F.3d 1307, 1315 (11th Cir. 2011). The Court strongly advices the Plaintiff to review the materials on the 1|| website for the United States District Court for the District of Arizona: https://www.azd.uscourts.gov. There, he will find a tab for “Those Proceeding Without an Attorney.” The Plaintiff should at a minimum review the Handbook for Self-Represented 4|| Litigants, which includes information in Chapter 8 pertaining to service. The Court will || afford the Plaintiff one more opportunity to serve the Summons and Complaint, pursuant to the provisions of Rule 4.

7 Accordingly, 8 IT IS ORDERED that the Plaintiff shall have 30 days to effectuate service of the || Summons and Complaint on Defendant pursuant to Fed. R. Civ. P. Rule 41). Failure to || properly serve the Defendant may result in dismissal of this case. THERE SHALL BE NO |} FURTHER EXTENSIONS OF TIME.

12 Dated this 30th day of June, 2022.

SS Honorabje David C. But V7 United States District Judge -3-