Needham v. State

2015 UT App 178THE UTAH COURT OF APPEALS
AARON DAVID TRENT NEEDHAM,
Appellant,
v.
STATE OF UTAH,
Appellee.
Per Curiam Decision
No. 20150315-CA
Filed July 23, 2015
Fifth District Court, St. George Department
The Honorable John J. Walton
No. 140500466
Aaron David Trent Needham, Appellant Pro Se
Before JUDGES STEPHEN L. ROTH, JOHN A. PEARCE, and
KATE A. TOOMEY.
PER CURIAM:
¶1 Aaron David Trent Needham appeals the February 6,
2015 Ruling Dismissing Action for Failure to Effect Service of
Process. This case is before the court on a sua sponte motion for
summary disposition. We affirm the district court’s dismissal of
Needham’s Amended Complaint. Accordingly, we deny his
motion for change of venue and his request for remand of the
case to the district court for further proceedings as moot.
¶2 This appeal is limited to a review of Fifth District Court
case number 140500466. We do not review any of Needham’s
other cases discussed in his response to the sua sponte motion.
Needham is currently incarcerated at the Utah State Prison. On
August 4, 2014, Needham filed a complaint for communication
fraud, seeking relief and damages. The complaint named as
defendants approximately forty individuals, businesses, state
agencies, correctional institutions, and newspapers. On August
Needham v. State
29, 2014, he filed the Amended Complaint, which is the
operative pleading.1 The Amended Complaint included a
number of claims for monetary damages, but it also included
claims regarding prison conditions. In a September 19, 2014
ruling, the district court advised Needham that the claims
challenging the conditions of his confinement at the Utah State
Prison could only be raised in a separate case filed under rule
65B(b) of the Utah Rules of Civil Procedure. Because rule
65B(b)(2) requires such a petition to be filed “in the district in
which the petitioner is restrained or the respondent resides or in
which the alleged restraint is occurring,” and because the Utah
State Prison is located in the Third Judicial District, the district
court ruled that the issues related to conditions of confinement
must be raised in a new petition filed in the Third District Court.
Accordingly, the district court stated in the case before us on
appeal that it would take no further action on claims related to
the conditions of confinement that were inappropriately
included in a complaint seeking civil damages.
¶3 After examining Needham’s inmate account, the district
court set an initial partial filing fee of $6.53, but stated that
Needham remained obligated to pay the full filing fee of $360 for
his civil suit. After the initial partial filing fee had been paid, the
district court directed in an October 28, 2014 ruling that “the
constable and sheriff shall serve a copy of the (first) Amended
Complaint and any summonses for named defendants upon
receipt from Plaintiff.” Needham did not provide copies of the
Amended Complaint or summonses for service on the named
1. On October 10, 2014, Needham filed a Second Amended
Complaint without obtaining leave of the court or consent of the
adverse parties. See Utah R. Civ P. 15(a). The district court
correctly determined that the pleading was a nullity. On
November 20, 2014, Needham again filed a purported
amendment to his complaint in which he claimed only to assert
jurisdiction under title 42 section 1983 of the United States Code.
20150315-CA 2 2015 UT App 178Needham v. State
defendants. On January 15, 2015, the district court issued an
Order to Show Cause requiring Needham to show why the case
should not be dismissed for failure to comply with rule 4 of the
Utah Rules of Civil Procedure because he had failed to effect
service “no later than 120 days after the filing of the complaint.”
In response, Needham asserted that (1) he had moved the
district court for a decision on how to proceed for service of “a
1983 complaint”; (2) under rule 5(c) of the Utah Rules of Civil
Procedure, the court could order that filing of a document
constituted service of process; (3) because he had purportedly
changed jurisdiction “to a 1983 complaint,” he was not required
to serve defendants through a sheriff; and (4) he had been unable
to proceed because the district court failed to provide direction
on service by publication. He requested an order authorizing
service by publication and an extension of the time for service.
¶4 In the February 6, 2015 ruling dismissing the case for
failure to accomplish service, the district court noted that in
November 2014, Needham purported to amend the Amended
Complaint “to modify the jurisdiction to a 1983 complaint.” The
district court concluded that because any amendment would
relate back to the date of the original complaint’s filing, it would
not extend the time in which a summons could be issued and
served. See Utah R. Civ. P. 15(c) (stating that “the amendment
relates back to the date of the original pleading”). The district
court correctly stated that rule 5(c) of the Utah Rules of Civil
Procedure, which pertains to cross-claims and counterclaims in a
pending action, “has nothing to do with the 120-day service
period of rule 4, and does not allow a court to dispense with a
plaintiff’s obligation to serve each and every defendant.” The
district court found that Needham did not request an order
allowing service by publication in case number 140500466 and
that the district court had directed in its October 28, 2014 ruling
that personal service was to be made on each of the defendants
and the sheriff’s obligation to effect service would arise only
after Needham had supplied the summonses to the sheriff. The
district court rejected the claim that Needham’s failure to effect
20150315-CA 3 2015 UT App 178Needham v. State
service was excused because he was awaiting further direction
from the district court. Furthermore, Needham had not shown
excusable neglect for his failure to timely accomplish service on
the named defendants and therefore was not entitled to an
extension.
¶5 The majority of Needham’s assertions in his response to
our motion for summary disposition do not pertain to case
number 140500466. Of twelve exhibits to the response, only
exhibits 2, 4, 9, and 10 are from the court records in case number
140500466, so we consider only those exhibits. The Amended
Complaint asserted civil damages claims against the named
defendants. It was not belatedly amended to be a “1983
Complaint,” and any claimed amendment would not alter the
requirements for personal service under rule 4 of the Utah Rules
of Civil Procedure and the district court’s October 28, 2014
ruling. Nowhere does Needham claim that he made any effort to
comply with the October 28, 2014 ruling by providing to the
sheriff copies of the Amended Complaint and summonses for
the named defendants. To the extent that Needham asserts
claims related to conditions of his confinement at the Utah State
Prison, the district court in this case correctly advised him that
those claims were not appropriately included in his civil
damages complaint and must have been asserted in a new
petition under rule 65B of the Utah Rules of Civil Procedure filed
in the Third District Court. We agree that Needham did not
demonstrate excusable neglect that would entitle him to an
extension of the time to effect service of process.
¶6 We affirm the February 6, 2015 ruling dismissing this
case. Accordingly, we deny as moot Needham’s request for a
remand to the district court for further proceedings on his
complaint and his motion for a change of venue to the Third
District Court.
20150315-CA 4 2015 UT App 178