UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ WILLIAM STAPLES, Plaintiff - Appellant,

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

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before PHILLIPS , McKAY , and O’BRIEN , Circuit Judges.

________________ _________________ William Staples, a fed eral prisoner appearing pro se, appeals t he district court’s dismissal without prej udice of this civil-rights action for failure to timely effect service of process under Ru le 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 h as determined unanimously that oral argument would not materially assist in t he determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is t herefore ordered submitted without oral ar gument. This order and judgme nt is not binding precedent, except under the doctr ines of law of the case, res j udicata, and collateral estoppel. It may be cited, howev er, for its persuasive value c onsistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### February 1, 2019
Elisabeth A. Shumaker Clerk of Court2 BACKGROUND On June 24, 2016, Staples filed a Bivens 1 action in the United States District Court for the Western District o f Oklahoma, alleging that a cor rectional officer named “Gonzalez” had sexually assa ulted him in July 2014 while he was temporarily housed at the Federal Transfer C enter in Oklahoma City, Oklahom a. App. at 15–16, 18. Staples asserted an Eighth Am endment claim ag ainst Gonzalez in his official and individual capacities as well as E ighth and Fourteenth Amendmen t claims against the United States and two prison offi cials for failing to protect h im from Gonzalez and for denying him an administrative grievance for the assault. St aples sought Gonzalez’s termination and damage s for the assault as well as c osts for the filing. Staples applied for and was gran ted leave to proceed in forma p auperis. District Judge Timothy D. DeGius ti referred the matter to Magis trate Judge Shon T. Erwin for initial procee dings, 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 recommendi ng that the case proceed only a s a Bivens action for damages against Gonzalez in hi s individual capacity. Judge Erwi n advised Staples of his right to object and that failu re to do so would waive any r ight to appellate review of the recommendation. When Stap les failed to timely object, Ju dge DeGiusti adopted Judge Erwin’s recommenda tion and dismissed all parties and claims other than the Bivens claim for damages against Gon zalez in his individual capacity.

1 Bivens v. Six Unknown Named Agents , 403 U.S. 388 (1971).3 On October 20, 2016, Judge Erwin o rdered Staples to serve proce ss on Gonzalez within 90 days 2 in accordance with Rule 4(m). Staples initially requested that the United States Marshals Service serve G onzalez at the F ederal Transfer Center, but the center returned the summons, unexecuted, with a notation that it didn’t employ anyone with the las t name “Gonzalez.” App. at 42– 44. To help locate the officer, Staples replied w ith 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 W estern District of Oklahoma, the Department of J ustice in Washington, D.C., and th e Bureau of Prisons in Washington, D.C. None of these attempts resulted in effectiv e personal service o n Gonzalez. Nevertheless, after s everal months elapsed, Staples m oved for default judgment. Rather than resolve the motion , Judge Erwin ordered Staples on June 5, 2017, to either perfect service on Gon zalez by June 26, 2017, or show good cause for not serving Gonzalez. In response, Sta ples defended his efforts at locating Gonzalez and asserted that he had properly served the U.S. Attorney, the Dep artment of Justice, and the Bureau of Prisons, all o f whom, he said, function as Go nzalez’s authorized “agents” for process purposes. See App. at 65–67. Judge Erwin rejected these arguments and, in a second report , recommended that the distric t court deny Staples’ motion for default judgment on th e basis that Staples hadn’t pr operly served

2 The district court initially pos tponed the 90-day period’s com mencement until that date to allow Judge Erw in to screen Staples’ complai nt.4 Gonzalez. Staples objected, agai n insisting on the sufficiency of his attempts at service. On de novo review, how ever, Judge DeGiusti concurred w ith Judge Erwin that Staples hadn’t properly se rved Gonzalez and that Gonzalez, having no notice of the action, wasn’t in default. On October 18, 2017, at Judge E rwin’s recommendation, Judge DeG iusti granted Staples an additional 60 days to locate and serve Gonza lez. Staples again attempted to serve Gonzalez at th e Federal Transfer Center, and the center again returned the summons unexecuted with a notation that Gonzalez d idn’t work there. Staples also requested that the Marshals reissue summons at the U.S. Attorney’s Office, the Department of Justi ce, and the Bureau of Prisons. S eparately, Staples filed with the Bureau of Prisons a Fre edom 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 repor t recommending that the distric t court dismiss the case without prejudice for failure to timely serve process. Jud ge Erwin found no good cause under Rule 4(m) for a manda tory extension of time to acco mplish service and concluded that a permissive exte nsion was unwarranted under the circumstances. Staples objected, stressing his di ligence in trying to locate G onzalez by contacting the Federal Transfer Center, by submitting a Freedom of Informa tion Act request to the Bureau of Prisons, and by reque sting assistance from staff members at his current facility of confinement.5 On de novo review, Jud ge DeGiusti “relucta ntly agree[d]” with J udge Erwin that a further extension of tim e to perfect service was unwarra nted. App. at 126. The court sympathized with Staples’ situation but declined to “inde finitely” delay the case “without any realistic hope f or better success in the near future in identifying and locating Defendant Gonzalez . . . .” Id. Accordingly, on March 16, 2018, the court dismissed the case withou t prejudice under Rule 4(m) and entered judgment. Staples appealed. During the appeal’s pendency, S taples moved the district court for leave to proceed on appeal in forma paupe ris. In his motion, Staples exp ressed his intent to appeal both the court’s dismissa l of his official-capacity clai m against Gonzalez and its determination that he had fa iled to properly serve Gonzalez under Rule 4. Finding that Staples hadn’t proffered a “reasoned, nonfrivolous argumen t” for appealing these issues, the court held that “the appeal is not taken in good fa ith.” App. at 132–33. The court thus denied the moti on, despite agreeing that Staples lacked the ability to pay the appellate filing fee. Sta ples then renewed his motion i n this court. Upon reviewing the record, we en tered an order directing Staple s to show cause why he hadn’t waived his ri ght to appeal the district cou rt’s order dismissing his official-capacity claim aga inst 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 f ailure to prosecute. On Staples’ motion and response to the show-cause order, however, we reinstated the appeal and recalled the mandate.6 ANALYSIS Staples challenges the district c ourt’s dismissal of his Eighth Amendment claim for damages against Gon zalez in his official capacity 3 and the court’s dismissal of this action for failure to t imely serve process on Gonzalez. Staples also seeks leave to proceed on appeal in forma pa uperis. 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 Gon zalez. Liberally construing his pr o se filings, see Hall
v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991), we understand Staples t o argue not only that the claim remains viabl e but that he timely served th e United States for the claim, as Rule 4(i)(2) requires. These arguments are unavailing

. As we noted in our show-cause ord er, Staples didn’t file writte n objections to the magistrate judge’s recommendati on that the district court d ismiss the officialcapacity claim against Gonzalez. T his circuit’s firm-waiver rul e prohibits appellate review of a magistrate judge’s r ecommendations i f 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 Ci r. 1996). The rule doesn’t apply, however, if (i) a pro se l itigant 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 cha llenge the distric t court’s dism issal of his claims against the other defendants.7 second exception include the pro s e litigant’s “effort to compl y [with the objection requirement], the for ce 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 Sta ples of his right to object and that a failure to do so would “waive[] the right to appellate review of both factual and legal ques tions.” App. at 35. Nor does just ice require appellate review. Staples’ only explanati on for failing to object is the vague assertion that, when Judge Erwin issued his repor t, 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 “refus ed 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 harassmen t by prison staff, undermines the force and plausi bility of his harassment explana tion. At a minimum, Staples could have alerted the d istrict court to the harassment in one of these filings and requested permission to subm it untimely objections on that basis. Even if Staples offered a plausi ble explanation for his failure to object, we would review the objecti on only for plain error. See Morales-Fernandez , 418 F.3d at 1120–22. To show error in the dis trict court’s dismissal of his official-capacity claim, Staples contends that it is “e ngraved in stone” that Gonzalez, acting “under color of law,” is liable for damages in his official capacity under 42 U .S.C. § 1983. Response8 to Show Cause Order at 11. Yet § 1983 authorizes official-capac ity claims only for injunctive relief and not for damages. Hafer v. Melo , 502 U.S. 21, 30 (1991). More important, § 1983 provides a mec hanism to enforce civil rights against state officials and not federal official s 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 offi cial in his official capacity. See Farmer v. Perrill , 275 F.3d 958, 963 (10th Cir. 2001). Acco rdingly, the district court didn’t plainly err in rejecting Staples’ incognizable official-capacity claim against Gonzalez. 4 In short, Staples fails to demons trate either a justification f or his failure to object to the dismissal of his o fficial-capacity claim or plain error in the dismissal. 5 As a result, justice doesn’t re quire review of Staples’ untimel y objection, and we needn’t reach Staples’ argument that he properly served the Uni ted States for the

4 Of course, Staples could state a claim for injunctive relief a gainst 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 agains t 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 exte nt that Staples initially req uested injunctive relief in the form of Gonzalez’s termina tion, he sought such relief fr om the United States and the prison officials with t he power to provide it. Those cl aims are not at issue in this appeal.

5 We liberally construe Staples’ pro se materials, but we will n ot “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 t o explain his failure to object and his arguments for why the district court erred in d ismissing the official-capacit y claim fail to persuade us that justice requires revi ew of his untimely objection.9 official-capacity claim. 6 We therefore turn to Staples’ attack on the district court’s dismissal of this action for fail ure to timely effect personal service on Gonzalez.
II. Dismissal for Insufficient Service of Process The district court dismissed Stap les’ Eighth Amendment claim ag ainst Gonzalez in his individual capacity for failure to timely serve process under Rule 4(m). We review a Rule 4(m) dismi ssal 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 defi ned in this circuit as a judicial action which is arbit rary, capricious, or whimsical.” Pelican Prod. Corp. v.
Marino , 893 F.2d 1143, 1146 (10th Cir. 1990). Pro se parties must comply with t he same rules for service of p rocess that govern other litigants. See DiCesare v. Stuart , 12 F.3d 973, 980 (10th Cir. 1993). Under Rule 4, a plaintiff must s erve each defendant a summons a nd a copy of the complaint. Fed. R. Civ. P. 4(c)(1) . A plaintiff asserting a cla im against a United States employee in an individua l capacity must serve both the U nited States and the employee in accordance with the p rocedures outlined in Rule 4(e ), (f), or (g). See Fed. R. Civ. P. 4(i)(3). The pla intiff has 90 days within which to accomplish such service after filing the compla int. Fed. R. Civ. P. 4(m). If th e plaintiff fails to meet

6 The argument lacks merit, in a ny event. Staples seems to rely on Rule 4(i)(2), under which a party must serve t he United States to serve a fed eral employee sued in his official capacity. Yet serv ice on the United States satisfi es 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.10 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 c ourt must extend the time for se rvice. Id. Staples filed this action on June 24, 2016, and on October 20, 2016, Judge Erwin ordered him to serve Gon zalez within 90 days. Staples fir st attempted service at the Federal Transfer Center, the U.S. Attorney’s Office, the Department of Justice, and the Bureau of Prisons. None o f Staples’ attempts resulted i n personal service on Gonzalez; in fact, the Federal Tr ansfer Center, the site of the alleged sexual-assault incident, disclaimed employing a nyone named “Gonzalez.” Judge E rwin accordingly informed Staples that his effort s at service were ineffective, and on June 5, 2017, he ordered Staples to either effect personal service on Gonzalez w ithin 21 days or show cause for failing to do so. Stapl es failed both directives. Non etheless, on October 18, 2017, the district court gave S taples an additional 60 days to find and serve Gonzalez. Staples proceeded to reattempt se rvice at the same four locatio ns as before, with the same result. Judge Erwin thus rec ommended dismissing the case f or failure to serve. Staples objected, emphasizing his diligence in searching for Go nzalez. On March 16, 2018, however, the district cour t dismissed the case without pr ejudice, declining to “indefinitely” delay proceedings w hile Staples searched for Gon zalez. 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 persona l service on Gonzalez. Indeed, nearly 21 months into the litigation, Staples hadn’t even ascertained Gonzalez’s iden tity or whereabouts.11 Though Staples diligently searche d for Gonzalez, such efforts d on’t constitute good cause for repeatedly missing the service-of-pro cess deadline. See Murphy v. City of
Tulsa , 556 F. App’x 664, 668 (10th C ir. Feb. 6, 2014) (describing th e “good cause” requirement as a “high hurdle”). N or do Staples’ search efforts entitle him to a third permissive extension of time to accomplish s ervice, especially when there’s no indication that he will ever succeed in finding Gonzalez. On appeal, Staples rehashes his earlier argument that his attem pts at service satisfied Rule 4. Staples insis ts that he served Gonzalez by is suing summons at the U.S. Attorney’s Office, the Depar tment of Justice, and the Bure au of Prisons, all of whom act as Gonzalez’s authori zed “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, wheth er by appointment or by law. See Fed. R. Civ. P. 4(e)(2)(C). Staples also contends that he served Gonzalez by le aving the appropriate documents with a “person of suita ble age and discretion” residi ng at Staples’ “last known address,” i.e. , the Federal Transfer Center. Ope n. Br. at 5–6. Staples seems to rely on Rule 4(e)(2)(B), which p ermits service at an “individua l’s dwelling or usual place of abode.” Yet there is no ev idence that the Federal Tran sfer Center was ever Staples’ “dwelling” or “abode.” I ndeed, the Federal Transfer Ce nter disclaimed that anyone named “Gonzale z” even worked there. At bottom, we have no reason to c harge the district court with abusing its discretion in dismissing this case without prejudice. Rule 4(i) (3) requires personal service on a federal employee su ed in an individual capacity. S taples proffers no12 persuasive justification for hi s failure to locate and serve Go nzalez after receiving multiple extensions of time over 21 months of litigation. Accor dingly, we see no good cause to warrant a further e xtension of time to effect pro per service, and we dismiss Staples’ appeal.
III. Leave to Proceed In Forma Pauperis 7 Though we dismiss the appeal, we must resolve Staples’ motion f or leave to proceed in forma pauperis. See Clark v. Oklahoma , 468 F.3d 711, 715 (10th Cir. 2006). Staples lacks the funds t o prepay the appellate filing f ee, but we may grant leave to proceed in forma pauperi s only if Staples filed this a ppeal 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’ goo d faith, even though his arguments on the law and fa cts 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 leav e to proceed in forma pauperis n otwithstanding the denial of a certificat e of appealability).

7 Judge O’Brien joins in the Orde r and Judgment in all respects but Part III. He will not file a separate opinion.

8 In a filing dated January 25, 20 19, Staples represented that h e has $26.39 in his encumbrance debt account, whi ch he would like to apply to t he $505.00 appellate filing fee. We deny this request a s moot given our decision to grant Staples leave to proceed in forma pauperis.13 CONCLUSION The district court’s order di smissing this case is AFFIRMED.

Entered for the Court

Gregory A. Phillips Circuit Judge