United States District Court, D. South Carolina
Michael E. Wolfe, #346590, Plaintiff,
Nfn. Rynolds, Nfn. Sharp, Nfn. Rogers, Nfn. McCullough, Nfn. Richardson, et al., Defendants.
REPORT AND RECOMMENDATION
E. Rogers, III United States Magistrate Judge
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.
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.
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.
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
(2) the amount of prejudice to the defendant;
(3) the history of the plaintiff in proceeding in a dilatory
(4) the existence of less drastic sanctions other than
Davis v. Williams, 588 F.2d 69 (4th Cir.1978).
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).
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.
of Right to File Objections to Report ...