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Brown v. May

United States District Court, D. South Carolina

October 8, 2019

Tequan L. Brown, Plaintiff,
v.
Jim May; Jeffery Long; Jeffery Scott; Charles Williams, Defendants.

          REPORT AND RECOMMENDATION

          PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE

         The plaintiff, Tequan L. Brown, a self-represented state prisoner, filed this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff files this action in forma pauperis under 28 U.S.C. § 1915 and § 1915A. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on Plaintiff's motion for a protective order (ECF No. 65), and Defendants Scott and Williams's motions to dismiss and for summary judgment (ECF Nos. 94 & 111). Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to the defendants' motions. (ECF Nos. 97 & 112.) In response, Plaintiff filed a motion in which he requests voluntary dismissal of Defendants Scott, Williams, and Long. (ECF No. 120.) Defendants Scott and Williams do not object to Plaintiff's motion but request that the matter be dismissed with prejudice. (ECF No. 122.)

         DISCUSSION

         A. Defendants May and Long

         The court issued an order on May 1, 2019 authorizing issuance and service of process on Defendants May and Long (“the federal defendants”) and directing the United States Marshals Service to serve the Summons and Complaint, as Plaintiff was granted leave to proceed in forma pauperis. (ECF No. 73); see Fed.R.Civ.P. 4(c)(3); 29 U.S.C. § 1915(d). The court's order stated that “[i]f the information provided by Plaintiff . . . is not sufficient for the Marshal to effect service of process, . . . the Marshal should so note in the ‘Remarks' section at the bottom of the Form USM-285.” (ECF No. 73 at 2.) Plaintiff was also specifically advised that “[p]laintiff must provide, and is responsible for, information sufficient to identify the defendant, ” that “[t]he United States Marshal cannot serve an inadequately identified defendant, ” and that “[u]nserved defendants may be dismissed as parties to this case.” (Id.) Review of the docket discloses that the summons for Defendant Long was returned unexecuted on May 23, 2019. (ECF No. 87.) Additionally, the federal defendants' attorney noted in his motion for an extension of the answer deadline that service had not been properly perfected on the federal defendants because the United States Attorney and the Attorney General had not been served. (ECF No. 89 at 1.) The court issued an order on July 15, 2019 notifying Plaintiff that Defendant Long's summons was returned unexecuted, reminding him that he was responsible for providing information sufficient to identify this defendant, and directing him to complete service documents for the United States Attorney for the District of South Carolina and the Attorney General of the United States. (ECF No. 103.) Plaintiff did not file any response to the court's order.

         Pursuant to Federal Rule of Civil Procedure 4(m), service of process generally must be effected on a defendant within ninety days of filing the Complaint. In this case, over ninety days has passed since the issuance of the order directing service of process. See Robinson v. Clipse, 602 F.3d 605, 608-09 (4th Cir. 2010) (tolling the time period for service during initial review). After review of the returned summons, the court concludes that the investigative efforts of the United States Marshals Service were reasonable. See Greene v. Holloway, No. 99-7380, 2000 WL 296314, at *1 (4th Cir. 2000) (citing with approval Graham v. Satkoski, 51 F.3d 710 (7th Cir. 1995)). Accordingly, the court determines that Defendants Long and May have not been properly served within the applicable time period. Plaintiff's claims against the federal defendants should therefore be dismissed without prejudice pursuant to Rule 4(m).

         B. Defendants Scott and Williams

         Pursuant to Federal Rule of Civil Procedure 41(a)(1), a plaintiff may not voluntarily dismiss his action without a court order after service of an answer or motion for summary judgment, unless a stipulation of dismissal is signed by all parties. Rule 41(a)(2) provides that “[e]xcept as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper.” Rule 41(a)(2) (emphasis added). Generally, a plaintiff's motion for voluntary dismissal without prejudice under Rule 41(a)(2) should not be denied absent plain legal prejudice to the defendant. See Andes v. Versant Corp., 788 F.2d 1033, 1036 (4th Cir. 1986); Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir. 1997). To establish plain legal prejudice, a defendant must show some harm other than the mere prospect of a second lawsuit. See Ellett Bros., Inc. v. United States Fidelity & Guar. Co., 275 F.3d 384 (4th Cir. 2001); see also Fed.R.Civ.P. 41(d) (permitting the court to order a plaintiff who has previously dismissed an action based on or including the same claim against the same defendant to pay all or part of the costs of the previous action and to stay the new case until the plaintiff has complied). Nonetheless, under appropriate circumstances, a district court may dismiss an action under Rule 41(a)(2) with prejudice. See Choice Hotels Int'l Inc.v. Goodwin & Boone, 11 F.3d 469, 471 (4th Cir. 1993). In deciding whether to dismiss an action pursuant to Rule 41(a)(2), a court should consider factors such as (1) the opposing party's effort and expense in preparing for trial; (2) excessive delay or lack of diligence on the part of the movant; (3) an insufficient explanation of the need for a dismissal; and (4) the present state of the litigation. Miller v. Terramite Corp., 114 Fed.Appx. 536, 540 (4th Cir. 2004) (citing Phillips USA, Inc., v. Allflex USA, Inc., 77 F.3d 354, 358 (10th Cir. 1996)). This list of important factors is not exclusive; the court may consider any relevant factors depending on the circumstances presented in the case. 9 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2364 (3d ed. 2008) (discussing Fourth Circuit law).

         Applying these factors, the court concludes that this matter should be dismissed without prejudice as to Defendants Scott and Williams subject to the following conditions: (1) if Plaintiff files an action based on or including the same claims against the same defendants in the future, the defendants may seek costs from this action pursuant to Rule 41(d) of the Federal Rules of Civil Procedure; and (2) any discovery materials or other evidence obtained during the course of the litigation of this matter may also be used in any subsequent matter. See Davis v. USX Corp., 819 F.2d 1270, 1276 (4th Cir. 1987).

         RECOMMENDATION

         For the foregoing reasons, the court recommends that Defendants Long and May be dismissed from this matter without prejudice pursuant to Federal Rule of Civil Procedure 4(m).

         Additionally, the court recommends that Plaintiffs motion to voluntarily dismiss Defendants Scott and Williams (ECF No. 120) be conditionally granted and that all other pending motions (ECF No. 65, 94, 111) be terminated.

         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.' ...


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