United States District Court, D. South Carolina
Eugene A. Gardner, III, #357996, Plaintiff,
Officer Dial, Darlington County Detention Center; and Warden Coe, Darlington County Detention Center, Defendants.
OPINION AND ORDER
Howe Hendricks United States District Judge
A. Gardner, III (“Plaintiff”), proceeding pro
se, initiated this civil rights action pursuant to 42
U.S.C. § 1983 against Defendants Officer Dial
(“Dial”) and Warden Coe (“Coe”) of
the Darlington County Detention Center
(“Defendants”), alleging violations of his
constitutional rights. (ECF No. 1.) In accordance with 28
U.S.C. § 636(b) and Local Rule 73.02, D.S.C., the action
was referred to United States Magistrate Judge Mary Gordon
Baker for pretrial handling and a Report and Recommendation
(“Report”). After an initial Report (ECF No. 34),
the Court previously granted Defendant Coe's motion for
summary judgment (see ECF No. 37) and denied
Plaintiff's motion to reconsider (see ECF No.
52). On October 20, 2017, Magistrate Judge Baker issued a
second Report (ECF No. 49) recommending that the Court grant
Defendant Dial's motion to dismiss (ECF No. 28) and
dismiss him from this action without prejudice. Plaintiff
filed three sets of objections (ECF Nos. 51, 54, and 55) to
the Report, and the matter is now ripe for consideration. The
Report sets forth in detail the relevant facts and standards
of law on this matter (see ECF No. 49 at 2-6) and
the Court incorporates them without recitation.
Magistrate Judge makes only a recommendation to the Court.
The recommendation has no presumptive weight. The
responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270-71
(1976). The Court is charged with making a de novo
determination of those portions of the Report to which
specific objection is made, and the Court may accept, reject,
or modify, in whole or in part, the recommendation of the
Magistrate Judge, or recommit the matter with instructions.
28 U.S.C. § 636(b)(1). However, the Court need not
conduct a de novo review when a party makes only
“general and conclusory objections that do not direct
the court to a specific error in the magistrate's
proposed findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of a timely filed, specific objection, the Magistrate
Judge's conclusions are reviewed only for clear error.
See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005).
Report, Magistrate Judge Baker carefully explains why
dismissal of Defendant Dial is appropriate under Federal
Rules of Civil Procedure 12(b)(4) and 12(b)(5). Put simply,
Plaintiff has failed to properly serve Defendant Dial, and
despite the United States Marshals Service's
(“Marshals Service”) reasonable efforts to locate
Dial, he cannot be located at this time. Plaintiff's
civil rights claims arise from interactions between Dial and
Plaintiff that occurred while Dial was a corrections officer
at Darlington County Detention Center (“DCDC”).
“Officer Dial” has been identified as Kevin Dial.
However, Dial is no longer employed by DCDC. An attorney was
engaged by the South Carolina Insurance Reserve Fund to
represent Dial, but that attorney has never had contact with
Dial. Dial has never responded to the attorney's written
correspondence mailed to Dial's last known address
provided by DCDC. The attorney has no knowledge of Dial's
whereabouts and is not in a position to contact him to
request authorization to accept service of process.
(See ECF No. 46.)
Plaintiff is incarcerated and proceeding pro se and
in forma pauperis, he is relying on the Marshals
Service and this Court to effect service of process. See
Robinson v. Clipse, 602 F.3d 605, 608 (4th Cir. 2010).
Dismissal of an action against a defendant under Rule
12(b)(5) for insufficient service is within the Court's
discretion, and is ordinarily proper where service is
unlikely to be accomplished. See Reinhold v.
Tisdale, No. 8:06-3311-MBS-BHH, 2007 WL 2156661, at *3
(D.S.C. Apr. 30, 2007), adopted at 2007 WL 2173368
(D.S.C. July 26, 2007) (citing Dimensional
Communications, Inc. v. OZ Optics, Ltd., 218 F.Supp.2d
653, 655 (D.N.J. 2002); Curcuruto v. Cheshire, 864
F.Supp. 1410, 1411 (S.D. Ga. 1994)). The pertinent inquiry is
whether the Marshals Service can locate the defendant with
“reasonable effort.” See Greene v.
Holloway, 210 F.3d 361 (4th Cir. 2000) (unpublished
table decision) (remanding for evaluation by the district
court whether the Marshals Service could have served the
defendant with reasonable effort).
Magistrate Judge recommends concluding that the Marshals
Service has expended reasonable investigative efforts to
locate Defendant Dial in this case. The Marshals attempted to
serve Dial at DCDC, but he no longer works there. They have
attempted service at Dial's last known address multiple
times to no avail. Moreover, the apartment manager advised
the Marshal that there was no “Kevin Dial”
registered at her complex. Furthermore, a neighbor advised
the Marshal that an elderly lady lives at the address in
question and there has never been a man living there.
(See ECF No. 49 at 4.) The Marshals Service also
utilized the electronic database it routinely relies upon to
locate individuals and serve process in such cases, with no
Magistrate Judge ordered Defendant Dial's counsel to
advise whether he has had any contact or communications with
Dial, and whether he is authorized to accept service of
process on Dial's behalf. (ECF No. 43.) Dial's
counsel responded with the information indicated above, that
he has never had contact with Dial and knows nothing of
Dial's whereabouts. (See ECF No. 46.) The
undersigned even personally ensured that the Marshals
reengaged the electronic tools to which they have access, and
re-approached DCDC staff for further information, if any,
regarding Dial's location. Despite these efforts, the
Marshals Service has been unable to locate Dial, and the
Court now finds that “reasonable effort” has been
expended. More than ninety (90) days have expired since
Plaintiff's complaint, and dismissal without prejudice is
required under Federal Rule of Civil Procedure 4(m).
filed three sets of objections (ECF No. 51, 54, and 55) to
the Report, which the Court has carefully reviewed. These
filings fail to state a specific objection to the Magistrate
Judge's sound reasoning or direct the Court to any
specific error in the proposed findings and recommendation
that dismissal is warranted under Rules 4(m) and
12(b)(4)-(5). Rather, Plaintiff's objections detail a
litany of alleged misconduct by Dial, leadership failures by
Defendant Coe and other Darlington County officials, and
alleged misconduct by DCDC staff who are not party to this
proceeding. (See id.) If true, the allegations of
inmate mistreatment within the DCDC are troubling. The Court
is sensitive to Plaintiff's position, given his reliance
on the Marshals Service and the Court to effect service on
Dial. However, the Court concludes that reasonable efforts
have been expended and Dial cannot be located at this time.
It is the fault neither of the Court, nor of the Marshal
Service that Dial may have given a false address to
his employer, that no forwarding address was provided, and
that the electronic resources to which the Marshals Service
has access do not reveal further helpful information in
locating Dial. Plaintiff is reminded that this procedural
dismissal is without prejudice and does not
adjudicate the merits of his § 1983 claim.
Court has conducted a de novo review of the Report
and the record. The Court finds Plaintiff's objections
insufficient to discard the sound analysis of the Magistrate
Judge and hereby overrules the objections. The Report fairly
and accurately summarizes the facts and applies the correct
principles of law as they pertain to failed service of
process on Defendant Dial. The Court agrees with the
Magistrate Judge and hereby grants Defendant Dial's
motion to dismiss.
reasons stated above and by the Magistrate Judge, the Court
overrules Plaintiff's objections and adopts and
incorporates the Magistrate Judge's Report. Accordingly,
Defendant Dial's motion to dismiss (ECF No. 23) is
GRANTED. This dismissal is without prejudice.