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Estep v. Johnson

United States District Court, D. South Carolina

November 20, 2014

Ronald Estep, #344622, Plaintiff,
v.
Nurse Johnson, individual and in her official capacity; Nurse McQueen, individual and in her official capacity; Evans Correctional Institution, Defendants

Ronald Estep, also known as Ronald H Estep, Plaintiff, Pro se, Bennettsville, SC.

REPORT AND RECOMMENDATION for partial disposition

Jacquelyn D. Austin, United States Magistrate Judge.

This matter is before the Court because Nurse McQueen has not been served with process, and Plaintiff failed to respond to this Court's August 28, 2014, Order. In this prisoner civil rights action, this Court authorized service of process upon certain defendants, including Nurse McQueen, on July 10, 2014. [Doc. 8.] On August 27, 2014, the U.S. Marshal informed this Court that he attempted personal service of process at the institution, but officials at the institution refused to accept service of process because no first name was listed for Nurse McQueen. [Doc. 19.] This Court also was informed that there is more than one nurse with that last name, and the institution is requiring a first name to be provided before it will accept service of process. [Doc. 26.] By Order dated August 28, 2014, this Court directed Plaintiff to provide a more complete name for Nurse McQueen and/or identifying physical characteristics of Nurse McQueen and/or identifying dates and locations when Nurse McQueen allegedly violated Plaintiff's rights. [ Id.] Plaintiff was given twenty-one (21) days from the date the Order was entered (plus three days for mail time) to complete and return to the Clerk of Court a new summons form and Form USM-285 for Nurse McQueen. [ Id.]

Further, this Court directed Plaintiff that if he could not obtain a first name or better identifying information for Nurse McQueen, he must notify the Court in writing whether he agrees to dismiss the defendant without prejudice or whether he seeks additional time for service of process with supporting reasons for such a request. [ Id.] This Court directed Plaintiff's attention to Rule 4(m) of the Federal Rules of Civil Procedure that provides,

[i]f a defendant is not served within 120 days after the complaint is filed, the court--on motion or on its own after notice to the plaintiff--must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

Fed. R. Civ. P. 4(m). [ Id.] Plaintiff was warned that if he did not respond to the Order and/or did not provide a new summons form and Form USM-285 for Nurse McQueen, this Court may recommend that Nurse McQueen be dismissed without prejudice. [ Id.] Plaintiff did not respond to the August 28, 2014, Order, and the time for response lapsed.[*]

It is recommended that Nurse McQueen should be dismissed from this case without prejudice pursuant to Rule 4(m) and Rule 41 of the Federal Rules of Civil Procedure. Plaintiff failed to respond to this Court's August 28, 2014, Order, and more than 120 days has passed pursuant to the rule for service of process under Rule 4(m). See Robinson v. Clipse, 602 F.3d 605, 608-09 (4th Cir. 2010) (tolling during initial review); see also Link v. Wabash R.R. Co., 370 U.S. 626, ...


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