United States District Court, D. South Carolina, Florence Division
Lavadre Butler, #337779, a/k/a Lavadre D. Butler, a/k/a Lavadre Dashun Butler, Plaintiff,
Trevor Bessinger, Lisa Young, Gregory Washington, Mr. Escalyne, Mr. Suarez, Mr. Braddy, Mr. Shorter, Mr. Williams, Mr. Wilson, Defendants.
ORDER AND OPINION
Richard MarR Gergel United States District Court Judge
matter is before the Court on the Report and Recommendation
("R. &R.") of the Magistrate Judge (Dkt. No.
50) recommending that the Court dismiss the action without
prejudice as to Defendants Escalyne and Wilson pursuant to
either Rule 41(b) or Rule 4(m) of the Federal Rules of Civil
Procedure. For the reasons below, this Court declines to
adopt the R. & R. (Dkt. No. 50) and denies without
prejudice Plaintiffs motion to amend the complaint (Dkt. No.
Background and Relevant Facts
a state prisoner proceeding pro se, filed this
action on November 15, 2016, alleging claims of excessive
force and deliberate indifference to a serious medical need
under 42 U.S.C. § 1983. (Dkt. No. 1.) On March 22, 2017,
the Magistrate authorized service of process. (Dkt. No. 24).
On April 3, 2017, the summonses for all Defendants were
re-issued after the Court granted Plaintiffs motion for
assistance from the U.S. Marshals Service for assistance with
service of process. (Dkt. Nos. 28, 30). All the summonses
were returned executed except for the summonses for
Defendants Escalyne and Wilson. The notation on the
unexecuted summonses indicated that there was no employee by
the name of Escalyne and there were several employees with
the last name "Wilson." (Dkt. Nos. 33, 34.) On June
1, 2017, the Magistrate ordered Plaintiff to provide new
summonses and Forms USM-285 for Escalyne and Wilson with more
specific information. Plaintiff did not respond to that order
or complete service documents. For this reason, the
Magistrate has recommended that this Court dismiss the action
as to Defendants Escalyne and Wilson for either (1)
Plaintiffs failure to prosecute and/or failure to comply with
orders of the court under Rule 41(b), or (2) Plaintiffs
failure to serve Defendants Wilson and Escalyne within ninety
(90) days after the complaint was filed under Rule 4(m).
(Dkt. No. 50 at 3.)
Legal Standard - Magistrate's Report and
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility for making a final determination remains with
this Court. See Mathews v. Weber, 423 U.S. 261,
270-71 (1976). This Court is charged with making a de
novo determination of those portions of the R. & R.
to which specific objection is made. Fed.R.Civ.P. 72(b)(2).
Additionally, the Court may "accept, reject, or modify,
in whole or in part, the findings or recommendations made by
the magistrate judge." 28 U.S.C. § 636(b)(1).
has filed objections to the R. & R. (Dkt. No. 50) and a
motion for extension of time to amend his complaint (Dkt. No.
52), indicating in both that he is diligently pursuing
information that will allow him to properly serve defendants
Escalyne and Wilson. Plaintiff appears to be making his best
efforts to serve these two defendants. This Court finds it
would be inappropriate to sua sponte dismiss the
action against these two defendants under the present
circumstances. See Allen v. Carey, 626 F.App'x
852 (11th Cir. 2015) (District court abused its discretion in
dismissing civil rights case filed by state inmate,
proceeding pro se and in forma pauperis,
against correctional officers for failure to effect service,
where inmate largely identified defendants and provided
information relevant to distinguishing which of officers at
facility with same last name was subject of his complaint,
and district court failed to determine whether defendants
could be located with reasonable effort.)
reasons discussed above, the Court declines to adopt the R.
& R. (Dkt. No. 50.) Plaintiff will have until September
29, 2017 to serve Defendants Escalyne and Wilson. Plaintiffs
motion for extension of time to amend the complaint (Dkt. No.
52) is denied without prejudice. Plaintiff may seek to amend
his complaint if and when he has grounds to do so.
IT IS SO ORDERED.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH
CAROLINA BEAUFORT DIVISION
STATES OF AMERICA, Plaintiff, v.
MANAGEMENT, INC., JOSEPH MAFFO, ELEANOR MAFFO, DANA MAFFO,