                                                                                   FILED
                                                                       United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                           Tenth Circuit

                             FOR THE TENTH CIRCUIT                           February 1, 2019
                         _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
 WILLIAM STAPLES,

       Plaintiff - Appellant,

 v.                                                          No. 18-6070
                                                      (D.C. No. 5:16-CV-00711-D)
 UNITED STATES OF AMERICA;                                   (W.D. Okla.)
 CHARLES SAMUEL, JR.; HARRELL
 WATTS; CORRECTIONAL OFFICER
 GONZALEZ,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before PHILLIPS, McKAY, and O’BRIEN, Circuit Judges.
                   _________________________________

      William Staples, a federal prisoner appearing pro se, appeals the district

court’s dismissal without prejudice of this civil-rights action for failure to timely

effect service of process under Rule 4 of the Federal Rules of Civil Procedure.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.




      *
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                  BACKGROUND

      On June 24, 2016, Staples filed a Bivens1 action in the United States District

Court for the Western District of Oklahoma, alleging that a correctional officer

named “Gonzalez” had sexually assaulted him in July 2014 while he was temporarily

housed at the Federal Transfer Center in Oklahoma City, Oklahoma. App. at 15–16,

18. Staples asserted an Eighth Amendment claim against Gonzalez in his official and

individual capacities as well as Eighth and Fourteenth Amendment claims against the

United States and two prison officials for failing to protect him from Gonzalez and

for denying him an administrative grievance for the assault. Staples sought

Gonzalez’s termination and damages for the assault as well as costs for the filing.

Staples applied for and was granted leave to proceed in forma pauperis.

      District Judge Timothy D. DeGiusti referred the matter to Magistrate Judge

Shon T. Erwin for initial proceedings, consistent with 28 U.S.C. § 636(b)(1)(B)-(C).

After screening the complaint under 28 U.S.C. §§ 1915A and 1915(e)(2), Judge

Erwin issued a report recommending that the case proceed only as a Bivens action for

damages against Gonzalez in his individual capacity. Judge Erwin advised Staples of

his right to object and that failure to do so would waive any right to appellate review

of the recommendation. When Staples failed to timely object, Judge DeGiusti

adopted Judge Erwin’s recommendation and dismissed all parties and claims other

than the Bivens claim for damages against Gonzalez in his individual capacity.



      1
          Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
                                           2
      On October 20, 2016, Judge Erwin ordered Staples to serve process on

Gonzalez within 90 days2 in accordance with Rule 4(m). Staples initially requested

that the United States Marshals Service serve Gonzalez at the Federal Transfer

Center, but the center returned the summons, unexecuted, with a notation that it

didn’t employ anyone with the last name “Gonzalez.” App. at 42–44. To help locate

the officer, Staples replied with a letter providing additional details about the alleged

sexual-assault incident. Meanwhile, Staples asked the Marshals to issue summons on

Gonzalez at the offices of the United States Attorney for the Western District of

Oklahoma, the Department of Justice in Washington, D.C., and the Bureau of Prisons

in Washington, D.C. None of these attempts resulted in effective personal service on

Gonzalez. Nevertheless, after several months elapsed, Staples moved for default

judgment.

      Rather than resolve the motion, Judge Erwin ordered Staples on June 5, 2017,

to either perfect service on Gonzalez by June 26, 2017, or show good cause for not

serving Gonzalez. In response, Staples defended his efforts at locating Gonzalez and

asserted that he had properly served the U.S. Attorney, the Department of Justice,

and the Bureau of Prisons, all of whom, he said, function as Gonzalez’s authorized

“agents” for process purposes. See App. at 65–67. Judge Erwin rejected these

arguments and, in a second report, recommended that the district court deny Staples’

motion for default judgment on the basis that Staples hadn’t properly served


      2
         The district court initially postponed the 90-day period’s commencement
until that date to allow Judge Erwin to screen Staples’ complaint.
                                            3
Gonzalez. Staples objected, again insisting on the sufficiency of his attempts at

service. On de novo review, however, Judge DeGiusti concurred with Judge Erwin

that Staples hadn’t properly served Gonzalez and that Gonzalez, having no notice of

the action, wasn’t in default.

      On October 18, 2017, at Judge Erwin’s recommendation, Judge DeGiusti

granted Staples an additional 60 days to locate and serve Gonzalez. Staples again

attempted to serve Gonzalez at the Federal Transfer Center, and the center again

returned the summons unexecuted with a notation that Gonzalez didn’t work there.

Staples also requested that the Marshals reissue summons at the U.S. Attorney’s

Office, the Department of Justice, and the Bureau of Prisons. Separately, Staples filed

with the Bureau of Prisons a Freedom of Information Act request for the correct

spelling of Gonzalez’s full name.

      When these renewed efforts failed to effect personal service on Gonzalez,

Judge Erwin issued a third report recommending that the district court dismiss the

case without prejudice for failure to timely serve process. Judge Erwin found no good

cause under Rule 4(m) for a mandatory extension of time to accomplish service and

concluded that a permissive extension was unwarranted under the circumstances.

Staples objected, stressing his diligence in trying to locate Gonzalez by contacting

the Federal Transfer Center, by submitting a Freedom of Information Act request to

the Bureau of Prisons, and by requesting assistance from staff members at his current

facility of confinement.



                                           4
      On de novo review, Judge DeGiusti “reluctantly agree[d]” with Judge Erwin

that a further extension of time to perfect service was unwarranted. App. at 126. The

court sympathized with Staples’ situation but declined to “indefinitely” delay the

case “without any realistic hope for better success in the near future in identifying

and locating Defendant Gonzalez . . . .” Id. Accordingly, on March 16, 2018, the

court dismissed the case without prejudice under Rule 4(m) and entered judgment.

Staples appealed.

      During the appeal’s pendency, Staples moved the district court for leave to

proceed on appeal in forma pauperis. In his motion, Staples expressed his intent to

appeal both the court’s dismissal of his official-capacity claim against Gonzalez and

its determination that he had failed to properly serve Gonzalez under Rule 4. Finding

that Staples hadn’t proffered a “reasoned, nonfrivolous argument” for appealing these

issues, the court held that “the appeal is not taken in good faith.” App. at 132–33.

The court thus denied the motion, despite agreeing that Staples lacked the ability to

pay the appellate filing fee. Staples then renewed his motion in this court.

      Upon reviewing the record, we entered an order directing Staples to show

cause why he hadn’t waived his right to appeal the district court’s order dismissing

his official-capacity claim against Gonzalez, given that he had failed to timely object

to the magistrate judge’s report and recommendation underlying that order. When

Staples failed to timely respond, we dismissed the appeal for failure to prosecute. On

Staples’ motion and response to the show-cause order, however, we reinstated the

appeal and recalled the mandate.

                                           5
                                      ANALYSIS

      Staples challenges the district court’s dismissal of his Eighth Amendment

claim for damages against Gonzalez in his official capacity3 and the court’s dismissal

of this action for failure to timely serve process on Gonzalez. Staples also seeks leave

to proceed on appeal in forma pauperis. We address these issues in turn.

I.    The Official-Capacity Claim Against Gonzalez

      Staples argues that the district court erred in dismissing his official-capacity

claim for damages against Gonzalez. Liberally construing his pro se filings, see Hall

v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), we understand Staples to argue not

only that the claim remains viable but that he timely served the United States for the

claim, as Rule 4(i)(2) requires. These arguments are unavailing.

      As we noted in our show-cause order, Staples didn’t file written objections to

the magistrate judge’s recommendation that the district court dismiss the official-

capacity claim against Gonzalez. This circuit’s firm-waiver rule prohibits appellate

review of a magistrate judge’s recommendations if the appellant didn’t timely object

below. Morales-Fernandez v. INS, 418 F.3d 1116, 1119 (10th Cir. 2005); United

States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996). The rule doesn’t

apply, however, if (i) a pro se litigant wasn’t informed of the opportunity to object

and the consequences of failing to do so; or (ii) the interests of justice require review.

Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008). Factors relevant to the


      3
        Staples doesn’t purport to challenge the district court’s dismissal of his
claims against the other defendants.
                                            6
second exception include the pro se litigant’s “effort to comply [with the objection

requirement], the force and plausibility of the explanation for his failure to comply,

and the importance of the issues raised.” Morales-Fernandez, 418 F.3d at 1120.

      Neither exception applies here. Judge Erwin plainly advised Staples of his

right to object and that a failure to do so would “waive[] the right to appellate review

of both factual and legal questions.” App. at 35. Nor does justice require appellate

review. Staples’ only explanation for failing to object is the vague assertion that,

when Judge Erwin issued his report, Staples “was experiencing a large amount of

hindrance” and “harassment” from prison staff. Response to Show Cause Order at 7.

As an example of such behavior, Staples says that, “in another unrelated case,” prison

staff stamped his mail “refused and returned to sender.” Id. But Staples identifies no

instance in which prison staff interfered with his actions in this case; in fact, Staples

doesn’t even claim that he attempted to object. Moreover, that Staples filed numerous

documents post-dismissal, none of which mentioned any harassment by prison staff,

undermines the force and plausibility of his harassment explanation. At a minimum,

Staples could have alerted the district court to the harassment in one of these filings

and requested permission to submit untimely objections on that basis.

      Even if Staples offered a plausible explanation for his failure to object, we

would review the objection only for plain error. See Morales-Fernandez, 418 F.3d at

1120–22. To show error in the district court’s dismissal of his official-capacity claim,

Staples contends that it is “engraved in stone” that Gonzalez, acting “under color of

law,” is liable for damages in his official capacity under 42 U.S.C. § 1983. Response

                                            7
to Show Cause Order at 11. Yet § 1983 authorizes official-capacity claims only for

injunctive relief and not for damages. Hafer v. Melo, 502 U.S. 21, 30 (1991). More

important, § 1983 provides a mechanism to enforce civil rights against state officials

and not federal officials such as Gonzalez. Bivens supplies the federal analogue for

such claims, and, just like § 1983, “[t]here is no such animal” as a Bivens claim for

damages against a federal official in his official capacity. See Farmer v. Perrill, 275

F.3d 958, 963 (10th Cir. 2001). Accordingly, the district court didn’t plainly err in

rejecting Staples’ incognizable official-capacity claim against Gonzalez.4

      In short, Staples fails to demonstrate either a justification for his failure to

object to the dismissal of his official-capacity claim or plain error in the dismissal.5

As a result, justice doesn’t require review of Staples’ untimely objection, and we

needn’t reach Staples’ argument that he properly served the United States for the




      4
         Of course, Staples could state a claim for injunctive relief against Gonzalez
in his official capacity under Ex Parte Young, 209 U.S. 123 (1908). Yet Staples seeks
only damages from Gonzalez, and a claim for damages lies against a federal official
only in his individual capacity. Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225,
1231 (10th Cir. 2005). To the extent that Staples initially requested injunctive relief
in the form of Gonzalez’s termination, he sought such relief from the United States
and the prison officials with the power to provide it. Those claims are not at issue in
this appeal.
      5
         We liberally construe Staples’ pro se materials, but we will not “assume the
role of advocate” on his behalf. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th
Cir. 2008) (quoting Ledbetter v. City of Topeka, Kan., 318 F.3d 1183, 1187–88 (10th
Cir. 2003)). Staples’ attempts to explain his failure to object and his arguments for
why the district court erred in dismissing the official-capacity claim fail to persuade
us that justice requires review of his untimely objection.

                                            8
official-capacity claim.6 We therefore turn to Staples’ attack on the district court’s

dismissal of this action for failure to timely effect personal service on Gonzalez.

II.    Dismissal for Insufficient Service of Process

       The district court dismissed Staples’ Eighth Amendment claim against

Gonzalez in his individual capacity for failure to timely serve process under Rule

4(m). We review a Rule 4(m) dismissal for abuse of discretion. Bolden v. City of

Topeka, Kan., 441 F.3d 1129, 1146 (10th Cir. 2006); Espinoza v. United States, 52

F.3d 838, 840 (10th Cir. 1995). “An abuse of discretion is defined in this circuit as a

judicial action which is arbitrary, capricious, or whimsical.” Pelican Prod. Corp. v.

Marino, 893 F.2d 1143, 1146 (10th Cir. 1990).

       Pro se parties must comply with the same rules for service of process that

govern other litigants. See DiCesare v. Stuart, 12 F.3d 973, 980 (10th Cir. 1993).

Under Rule 4, a plaintiff must serve each defendant a summons and a copy of the

complaint. Fed. R. Civ. P. 4(c)(1). A plaintiff asserting a claim against a United

States employee in an individual capacity must serve both the United States and the

employee in accordance with the procedures outlined in Rule 4(e), (f), or (g). See

Fed. R. Civ. P. 4(i)(3). The plaintiff has 90 days within which to accomplish such

service after filing the complaint. Fed. R. Civ. P. 4(m). If the plaintiff fails to meet



       6
         The argument lacks merit, in any event. Staples seems to rely on Rule 4(i)(2),
under which a party must serve the United States to serve a federal employee sued in
his official capacity. Yet service on the United States satisfies the rule only when the
federal employee is “sued only in an official capacity,” see Fed. R. Civ. P. 4(i)(2)
(emphasis added), which is not the case here.
                                             9
this requirement, the court may dismiss the action against the unserved defendant

without prejudice or extend the time for service. Id. Upon a showing of good cause

for the failure, however, the court must extend the time for service. Id.

      Staples filed this action on June 24, 2016, and on October 20, 2016, Judge

Erwin ordered him to serve Gonzalez within 90 days. Staples first attempted service

at the Federal Transfer Center, the U.S. Attorney’s Office, the Department of Justice,

and the Bureau of Prisons. None of Staples’ attempts resulted in personal service on

Gonzalez; in fact, the Federal Transfer Center, the site of the alleged sexual-assault

incident, disclaimed employing anyone named “Gonzalez.” Judge Erwin accordingly

informed Staples that his efforts at service were ineffective, and on June 5, 2017, he

ordered Staples to either effect personal service on Gonzalez within 21 days or show

cause for failing to do so. Staples failed both directives. Nonetheless, on October 18,

2017, the district court gave Staples an additional 60 days to find and serve Gonzalez.

Staples proceeded to reattempt service at the same four locations as before, with the

same result. Judge Erwin thus recommended dismissing the case for failure to serve.

Staples objected, emphasizing his diligence in searching for Gonzalez. On March 16,

2018, however, the district court dismissed the case without prejudice, declining to

“indefinitely” delay proceedings while Staples searched for Gonzalez. App. at 126.

      Under these circumstances, the district court didn’t abuse its discretion in

dismissing the case. Despite two extensions of time for service and eight attempts,

Staples failed to effect personal service on Gonzalez. Indeed, nearly 21 months into

the litigation, Staples hadn’t even ascertained Gonzalez’s identity or whereabouts.

                                           10
Though Staples diligently searched for Gonzalez, such efforts don’t constitute good

cause for repeatedly missing the service-of-process deadline. See Murphy v. City of

Tulsa, 556 F. App’x 664, 668 (10th Cir. Feb. 6, 2014) (describing the “good cause”

requirement as a “high hurdle”). Nor do Staples’ search efforts entitle him to a third

permissive extension of time to accomplish service, especially when there’s no

indication that he will ever succeed in finding Gonzalez.

      On appeal, Staples rehashes his earlier argument that his attempts at service

satisfied Rule 4. Staples insists that he served Gonzalez by issuing summons at the

U.S. Attorney’s Office, the Department of Justice, and the Bureau of Prisons, all of

whom act as Gonzalez’s authorized “agents” for process purposes. See Open. Br. at

4–7. Staples, however, fails to proffer evidence of an “agency” relationship between

Gonzalez and these entities, whether by appointment or by law. See Fed. R. Civ. P.

4(e)(2)(C). Staples also contends that he served Gonzalez by leaving the appropriate

documents with a “person of suitable age and discretion” residing at Staples’ “last

known address,” i.e., the Federal Transfer Center. Open. Br. at 5–6. Staples seems to

rely on Rule 4(e)(2)(B), which permits service at an “individual’s dwelling or usual

place of abode.” Yet there is no evidence that the Federal Transfer Center was ever

Staples’ “dwelling” or “abode.” Indeed, the Federal Transfer Center disclaimed that

anyone named “Gonzalez” even worked there.

      At bottom, we have no reason to charge the district court with abusing its

discretion in dismissing this case without prejudice. Rule 4(i)(3) requires personal

service on a federal employee sued in an individual capacity. Staples proffers no

                                          11
persuasive justification for his failure to locate and serve Gonzalez after receiving

multiple extensions of time over 21 months of litigation. Accordingly, we see no

good cause to warrant a further extension of time to effect proper service, and we

dismiss Staples’ appeal.

III.   Leave to Proceed In Forma Pauperis7

       Though we dismiss the appeal, we must resolve Staples’ motion for leave to

proceed in forma pauperis. See Clark v. Oklahoma, 468 F.3d 711, 715 (10th Cir.

2006). Staples lacks the funds to prepay the appellate filing fee, but we may grant

leave to proceed in forma pauperis only if Staples filed this appeal in good faith. See

McIntosh v. United States Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997); 28

U.S.C. § 1915(a)(3). We have no reason to question Staples’ good faith, even though

his arguments on the law and facts are not reasonably debatable. Accordingly, we

grant leave to proceed in forma pauperis.8 See Watkins v. Leyba, 543 F.3d 624, 627

(10th Cir. 2008) (granting leave to proceed in forma pauperis notwithstanding the

denial of a certificate of appealability).




       7
         Judge O’Brien joins in the Order and Judgment in all respects but Part III. He
will not file a separate opinion.
       8
         In a filing dated January 25, 2019, Staples represented that he has $26.39 in
his encumbrance debt account, which he would like to apply to the $505.00 appellate
filing fee. We deny this request as moot given our decision to grant Staples leave to
proceed in forma pauperis.
                                             12
                           CONCLUSION

The district court’s order dismissing this case is AFFIRMED.


                                   Entered for the Court


                                   Gregory A. Phillips
                                   Circuit Judge




                                  13
