United States District Court, D. South Carolina
Tequan L. Brown, Plaintiff,
Jim May; Jeffery Long; Jeffery Scott; Charles Williams, Defendants.
REPORT AND RECOMMENDATION
J. GOSSETT UNITED STATES MAGISTRATE JUDGE
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.)
Defendants May and Long
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.
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
Defendants Scott and Williams
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).
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).
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).
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.
of Right to File Objections to Report and
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.'