UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ CALVIN R. PETERSEN, Plaintiff - Appellant,

v. METLIFE LONG TERM CARE INSURANCE; THE ENSIGN GROUP; STATE OF UTAH, Defendants - Appellees. No. 20-4067 (D.C. No. 1:19- CV-00129-HCN) (D. Utah)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , BALDOCK , and CARSON , Circuit Judges.

________________ _________________ Plaintiff-Appellant Calvin R. Petersen, proceeding pro se, a ppeals the district court’s dismissal of his clai ms under 42 U.S.C. § 1983 fo r failure to prosecute and effect service. Exercisi ng jurisdiction under 28 U.S.C. § 1291, we affirm the dismissal of Petersen’s claims.

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### August 26, 2020 Christopher M. Wolpert Clerk of Court2 I On November 13, 2019, Petersen file d a § 1983 complaint against Defendants MetLife Long Term Care Insurance, The Ensign Group, and the State of Utah. Petersen alleged that the defendants were violating the Fourteenth Amendment and the Americans with Disabil ities Act (ADA) by institutiona lizing the disabled without establishing medical need a nd by refusing to provide bene fits for home care or less restrictive alternatives to institutionalization. After filing his complaint, Petersen fi led four motions to appoint counsel and two motions for service of process. The ma gistrate judge denied Petersen’s motions for appointment of counsel and hi s motions for service of process. 1 But in light of Petersen’s disability and his status as a pro se litigant, the magistrate judge extended service requirements beyond th e ninety-day time period, see Fed. R. Civ. P. 4(m), giving Petersen until April 15, 2020 to e ffect service. On March 25, 2020, the magistrate judge issued an or der advising Petersen that a failure to effect service by that date would result in a recommendation of dismissal to the district court. Petersen, however, failed to effect service by the April 15, 2020 deadline, and instead filed another motion to appoint counsel a nd another motion for service of process, both of which were identical to his prev iously filed motions. Accordingly, the magistrate judge recommended the action be dismissed without prejudice for failure to prosecute and effect se rvice on the defendants.

1 In denying Petersen’s motions, the ma gistrate judge identified free or lowcost organizations for Petersen to c ontact to obtain legal representation.3 Petersen timely filed objections to th e magistrate judge’s recommendation. The district court overruled Petersen’s obj ections, adopted the magistrate judge’s recommendation, and dismissed the action without prejudice. Petersen timely appealed. II We review for an abuse of discretion an order dismissing an action for failure to prosecute and effect service. See Scott v. Hern , 216 F.3d 897, 912 (10th Cir. 2000). An abuse of discreti on occurs when a district c ourt makes a clear error of judgment or exceeds the bounds of permis sible choice in the circumstances. McEwen v. City of Norman , 926 F.2d 1539, 1554 (10th Cir. 1991). Applying th is deferential standard, we affirm the distri ct court’s dismissal order. On appeal, Petersen describes his disabi lity and rehashes the grievances in his complaint. Specifical ly, he argues that he has “no need to be in nursing care” and that he “could have easily remained at hom e by contracting for th e necessary services from a home-health agency.” Ap lt. Br. at 2–3. He also st ates that he pays “out-ofpocket some $2500 a month because [his] polic y maxes out . . . below the cost of a skilled-nursing facility,” which he argue s violates the ADA and the Fourteenth Amendment. Id. at 3. The district court, however, did not a ddress the merits of Petersen’s claims; rather, it dismissed the action based on Pete rsen’s failure to pr osecute and effect service. Having reviewed th e entire record on appeal, we cannot say that the district court’s dismissal was an abuse of discre tion. The magistrate judge, considering4 Petersen’s disability and pr o se status, extended servi ce requirements approximately two months beyond the ninety-day period. See Fed. R. Civ. P. 4(m). Despite this extension, Petersen failed to effect service. And wh ile we are cognizant of the difficulties Petersen faced as a pro se litigant, including, as he points out, his unfamiliarity with PACER, the magistrate judge independently advised Petersen as to the status of his case; advised him to comp lete the pro se email filing and notification form; and identified numerous free or low-co st organizations for him to contact to obtain legal representation. Under these circumstances, the district court did not abuse its discretion in dismissing Petersen ’s complaint for failure to prosecute and effect service. The judgment of the dist rict court is AFFIRMED.

Entered for the Court
Mary Beck Briscoe Circuit Judge