United States District Court, D. South Carolina
Rickey A. Fuquea, Plaintiff,
Walter Vereen, S. Salem, C. Nevils, C. Blackwelder, and P. Wellman, Defendants.
V. Hodges, United States Magistrate Judge.
matter comes before the court on defendants' motion to
consolidate the deadline to answer or otherwise plead. [ECF
No. 23]. By way of background, the undersigned issued an
order on October 4, 2019, directing the United States Marshal
Service (“USMS”) to effect service of process in
this case. [ECF No. 11]. The USMS served both the United
States Attorney for the District of South Carolina
(“the USA”) and the United States Attorney
General within ten days of the order. [ECF Nos. 21, 22].
Sixty days after the USA was served, on December 10, 2019,
the Assistant United States Attorney (“AUSA”)
filed the instant motion to consolidate response times to
file one responsive pleading for all defendants. The motion
further indicates that none of the individual defendants have
yet been served. [ECF no. 23 at 1].
review of the motion, the court inquired with the USMS the
status of service on the individual defendants, as over 60
days have elapsed since service was ordered and the summonses
expire in less than 30 days. USMS advised that it inquired
with the Bureau of Prisons (“BOP”) immediately
after service was ordered, and again on November 1, 2019, to
determine whether BOP counsel was authorized to accept
service of process on behalf of the individual defendants.
Upon inquiring yet again on December 11, 2019, BOP counsel
advised USMS it was authorized to accept service on behalf of
individual defendants. Thus, 60 days after service was
authorized, no individual defendant appears to have been
served, despite the USMS' inquiries to BOP counsel.
delays are not an isolated event. As in this case, the court
is not informed until the day that a responsive pleading
appears to be due (based on the day the USA was served) that
service has not been effected on several, and often all,
defendants. Also as in this case, there is no indication in
the motion that BOP counsel has failed to advise the USMS for
over two months whether it is authorized to accept service on
behalf of individual defendants. Despite the AUSAs appearance
by way of the motion on behalf of the unserved defendants,
the motion typically indicates that additional time is
needed, as the USA's office must have the express
permission of the Department of Justice and the individual
defendants to represent them. The end result in this case is
typical of others-although the USA's office and the BOP
have been aware of the case since early October 2019 and have
had ample time to identify the individual defendants and
determine whether service can be accepted for them,
absolutely no progress has been made. The motion contains no
explanation of why no progress has been made, but simply
requests what is essentially an unlimited extension. The
court is then forced to independently investigate service
issues or risk even greater time be wasted.
undersigned therefore directs the following procedure to
ensure that service is efficiently effected. Failure to
follow this procedure will result in the undersigned's
denials of requests for extensions of time. After service of
a complaint in which federal employees are named as
defendants in their individual capacity, within 30 days of
service of process on the USA, the assigned AUSA shall advise
the court whether the BOP has been authorized to accept
service on behalf of all or some of the defendants and
whether BOP counsel has so communicated to the USMS. If the
BOP has not received authorization to accept service on
behalf of a defendant, the undersigned will issue an order
directing the BOP to provide the last known home address of
the defendant and the court will authorize personal service
there. If the BOP has been unable to determine whether it can
accept service due to problems identifying the defendant, the
AUSA is to so communicate to the court. This procedure will
allow the court to determine whether any consolidation of
response time is necessary or should include all defendants.
Absent communication by the AUSA to the court that it is
seeking authority to represent the individual defendants,
their answers are due within 60 days of proper service.
the BOP has accepted service on behalf of all those
authorized, the USA's office, BOP counsel, and individual
defendants are directed to work together to expeditiously
submit the required paperwork to determine representation.
Any requests for extensions of time based on failure to
receive authorization shall include the dates upon which
requests for representation were made to DOJ and specific
information regarding attempts to obtain permission from the
individual defendants. To the extent there is an atypical
delay, the AUSA should so communicate to the court.
undersigned will no longer consider any requests for
extensions of time to file a responsive pleading or motion to
consolidate the response times of all defendants that are
made 60 days or more after the first interested party is
instant case, defendants' motion is granted to the extent
it requests consolidation of response times. The defendants
may file a joint responsive pleading within 60 days of the
earliest served defendant. The USA should coordinate with BOP
counsel immediately, even before service so that the required
permissions may be obtained efficiently.
AUSA is directed to share this order with the Civil Chief of
the USA's office. Counsel are reminded of the mandate of
Rule 1 of the Federal Rules of Civil Procedure requiring the
rules be “construed, administered, and employed by the
court and the parties to secure the ...