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Dyke v. McCree

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

October 7, 2019

Roger Allen Dyke, Plaintiff,
v.
Dr. John McCree, Nurse Burdetter, Nurse Jones, Nurse Hatfield, Lieutenant Brazzy, Captain Lisa Young, Nurse Troll, Nurse Cooper, 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 May 24, 2019, the plaintiff's complaint against the defendants pursuant to 42 U.S.C. § 1983 was entered on the docket (doc. 1). On June 12, 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. 13). 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 2-3). 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 July 23, 2019, the USMS filed documents indicating that it could not serve the summons and complaint on defendants Lt. Brazzy and Nurse Cooper (doc. 17). The USMS attempted to serve these defendants, but noted as follows: Lt. Brazzy “SCDC OGC cannot accept - could not find this defendant”; Nurse Cooper “SCDC OGC cannot accept - could not find this defendant” (id.). Due to the returned unexecuted summons, on July 24, 2019, the court issued an order instructing the plaintiff to provide a new summons and Forms USM 285 for defendants Lt. Brazzy and Nurse Cooper (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). The plaintiff has not provided additional information for the unserved defendants 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, 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). Here, the plaintiff filed his lawsuit pro se and in forma pauperis. As such, the ninety day time limit did not run during the initial review of this case. See Robinson v. Clipse, 602 F.3d 605, 608-09 (4th Cir. 2010). Rather, it began to run on the date when the summonses were issued, June 12, 2019 (doc. 15). Even tolling that time limit from July 24, 2019, to August 14, 2019, during which the plaintiff was provided time to submit a new summons and Forms USM 285 for the unserved defendants, the 90-day service deadline expired on October 3, 2019.

         As noted, the plaintiff has had two opportunities to provide service information for the unserved defendants. Additionally, the plaintiff was warned 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” (doc. 13 at 2). The plaintiff was further warned of the consequences of not responding to the court's July 24, 2019, order with a new summons and Forms USM 285 for the unserved defendants (doc. 19). Despite these warnings, the plaintiff has not provided the USMS with information sufficient to effect service upon the unserved defendants. Moreover, as noted, the plaintiff has not responded to the court's July 24, 2019, order. As such, because the plaintiff has failed to comply with the court's order to provide a new summons and new Forms USM 285 for the unserved defendants, and has failed to show good cause for his failure to respond to this court's order, the unserved defendants should be dismissed as defendants in this case.

         Accordingly, it is recommended that defendants Lt. Brazzy and Nurse Cooper 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 ...

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