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Wolfe v. Rynolds

United States District Court, D. South Carolina

September 7, 2018

Michael E. Wolfe, #346590, Plaintiff,
v.
Nfn. Rynolds, Nfn. Sharp, Nfn. Rogers, Nfn. McCullough, Nfn. Richardson, et al., Defendants.

          REPORT AND RECOMMENDATION

          Thomas E. Rogers, III United States Magistrate Judge

         This is a civil action filed by a state prisoner. The original complaint was fully authorized for service on all defendants. (ECF No. 9). Plaintiff submitted proposed USM-285s on May 17, 2018, which were issued on June 4, 2018. (ECF Nos. 6, 12). On June 18, 2018, Plaintiff submitted additional unnecessary proposed 285s with no change in names or addresses. (ECF No. 16-1). On July 23, 2018, the summons and 285s returned unexecuted on Defendants Kline and O'Neal, stating said Defendants could not be identified as SCDC employees. (ECF No. 18). On July 27, 2018, the court ordered Plaintiff to “provide updated service forms with more specific identifying information for Defendants Kline and O'Neal.” (ECF No. 23). Plaintiff filed various letters which indicated to the court that Plaintiff may have been confused as to his duties under the prior order. Thus, on August 10, 2018, the court detailed a history of filings and again ordered Plaintiff to file “updated service forms with more specific identifying information for Defendants Kline and O'Neal should Plaintiff desire to attempt service upon these Defendants again.” (ECF No. 33).

         After the August 10 order, Plaintiff filed several more letters and motions. (ECF No. 37-43). On August 20, 2018, Plaintiff's Motion to Amend his complaint was granted, and the Amended Complaint was filed. (ECF No. 45). Pertinent here, Plaintiff's Motion requesting information for service was granted in part. (ECF Nos. 43, 44). Plaintiff again provided proposed service documents for Kline and O'Neal, which do not provide any more information than the previously issued service documents. (ECF No. 39). Defendants who are represented by counsel responded to the order regarding information for service and said Defendants filed such information under seal. (ECF No. 48). Relevant here, counseled Defendants continue to be unable to identify Defendants Kline and O'Neal as employees of SCDC with the information provided by Plaintiff, and thus, are unable to accept service on their behalf.

         As a matter of judicial economy, the court has assisted Plaintiff to the extent possible in garnering information to serve Defendants Kline and O'Neal. Plaintiff has provided no further identifying information and was given multiple opportunities to do so.

         A complaint may be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute and/or failure to comply with orders of the court. Ballard v. Carlson, 882 F.2d 93 (4th Cir.1989), cert. denied 493 U.S. 1084 (1990) and Chandler Leasing Corp. v. Lopez, 669 F.2d 919 (4th Cir.1982). In considering whether to dismiss an action pursuant to Rule 41(b), the court is required to consider four factors:

(1) the degree of plaintiff's responsibility in failing to respond;
(2) the amount of prejudice to the defendant;
(3) the history of the plaintiff in proceeding in a dilatory manner; and,
(4) the existence of less drastic sanctions other than dismissal.

Davis v. Williams, 588 F.2d 69 (4th Cir.1978).

         In the present case, Plaintiff is proceeding pro se so he is entirely responsible for his actions. It is solely through plaintiff's own neglect, and not that of an attorney, that appropriate responses to the Orders have not been filed. As Plaintiff has failed to provide a summons and Form USM-285 for Defendants Kline and O'Neal with an updated address or further identifying information and said Defendants cannot be served without such information, it is recommended that Defendants Kline and O'Neal be dismissed as parties pursuant to Fed. R. Civ. Proc. 41(b).

         CONCLUSION

         It is, therefore, RECOMMENDED that Plaintiff's claims as against only Defendants Kline and O'Neal be dismissed without prejudice pursuant to Fed. R. Civ. Proc. 41(b). On this same day, an order authorizing service of the Amended Complaint on other Defendants has been filed.

         Notice of Right to File Objections to Report ...


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