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Mendez v. Glover

United States District Court, D. South Carolina, Greenville Division

July 9, 2019

Juan Mendez, Plaintiff,
v.
C/O Glover, C/O Cook, C/O Cleveland, C/O Houser, Sgt. Brown, Defendants.

          REPORT OF MAGISTRATE JUDGE

          KEVIN F. MCDONALD UNITED STATES MAGISTRATE JUDGE

         This is an action filed by a state prisoner proceeding pro se and in forma pauperis. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(e) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in this case and submit findings and recommendations to the district court.

         On February 4, 2019, the plaintiff filed a complaint against the defendants pursuant to 42 U.S.C. § 1983 (doc. 1). On March 29, 2019, the court entered an order authorizing service of process, and instructed the Clerk of Court to issue the summonses and to forward them and Forms USM-285 to the United States Marshal Service (“USMS”) for service of process (doc. 12 at 1). The order informed the plaintiff that although his lawsuit would be served by the USMS, he was responsible for providing “information sufficient to identify the defendant on the Forms USM-285” (id. at 2). The order warned the plaintiff that pursuant to Federal Rule of Civil Procedure 4(m) if a defendant was not served within 90 days after the summons is issued, the unserved defendant(s) may be dismissed from the case (id.).

         On May 3, 2019, the USMS filed documents indicating that it could not serve the summons and complaint on defendants C/O Houser, C/O Glover, and Sgt. Brown (doc.17). The USMS attempted to serve these defendants, but noted as follows: C/O Houser - “SCDC OGC cannot accept - Defendant was deployed and placed on leave without pay”; C/O Glover - “SCDC OGC cannot accept cannot ID or find defendant”; Sgt. Brown “SCDC OGC cannot accept. Cannot ID or find defendant” (id.). Due to the returned unexecuted summons, on May 8, 2019, the court issued an order instructing the plaintiff to provide a new summons and Forms USM 285 for defendants C/O Houser, C/O Glover, and Sgt. Brown (collectively, “the unserved defendants”) (doc. 19). The order reminded the plaintiff of the requirement in Federal Rule of Civil Procedure 4(m) that a defendant be served within 90 days of the issuance of the summons and warned the plaintiff that if he did not provide additional information for the unserved defendants that the court would recommend dismissing the unserved defendants (id. at 1-2). On May 20, 2019, the plaintiff sought additional time to provide new service documents for the unserved defendants, and the undersigned extended the deadline to June 28, 2019 (docs. 24; 25). The order warned the plaintiff that if he failed to provide the information requested by June 28, 2019, the undersigned would recommend dismissal of the unserved defendants (doc. 25). On July 8, 2019, the plaintiff provided a new Form USM 285 for C/O Houser (doc. 34). The plaintiff has not provided additional information for defendants C/O Glover or Sgt. Brown and the time for providing the information has now passed.

         Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, “[i]f a defendant is not served within 90 days after the complaint is filed[1], the court - on motion or on its own after notice to the plaintiff - must dismiss the action without prejudice against that defendant . . . [b]ut 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) (footnote added). As an initial matter, the plaintiff's new Form USM 285 for C/O Houser does not provide an updated address for service (doc. 34) and thus, does not comply with this court's order to provide an updated address for service of process. As noted above, C/O Houser's summons was returned unexecuted, with SCDC indicating that it could not accept service because he “was deployed and placed on leave without pay” (doc. 17). The plaintiff indicates on the new Form USM 285 that C/O Houser “work[s] at Broad River, however the fac. know w[here] he is at so he can be f[ound]” (id.). Nevertheless, this assertion does not provide the USMS with an updated location to serve C/O Houser. As such, the undersigned recommends that C/O Houser be dismissed as a party defendant in this action. With respect to defendants C/O Glover and Sgt. Brown, the plaintiff has failed to respond to this court's May 22, 2019, order. Therefore, because the plaintiff has failed to show good cause for the failure to serve the unserved defendants (and has failed to comply with the court's order to provide new Forms USM 285 for the unserved defendants), they should be dismissed as defendants in this case.

         Accordingly, it is recommended that defendants C/O Houser, C/O Glover, and Sgt. Brown be dismissed from this action pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. The plaintiff's attention is directed to the important notice on the next page.

         IT IS SO RECOMMENDED.

         Notice of Right to File Objections to Report and Recommendation

         The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).

         Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:

Robin L. Blume, Clerk
United States District Court
300 East Washington Street, ...

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