Opinion
2:23-cv-02084-DCC-BM
06-12-2024
Darrell Denteze Horry, Plaintiff, v. Officer Cardenas, Officer Tew, Officer Stroder, Defendants.
REPORT AND RECOMMENDATION
Bristow Marchant United States Magistrate Judge
This matter is before the Court to address the status of two unserved Defendants-Officer Cardenas and Officer Tew. Plaintiff is an inmate presently confined at the Smith Transition Center in Claxton, Georgia. ECF No. 52. He is proceeding in this action pro se and in forma pauperis. Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B), D.S.C., the undersigned Magistrate Judge is authorized to review all pretrial matters in this case and to submit findings and recommendations to the District Court. For the reasons below, the undersigned recommends that Officer Cardenas and Officer Tew be dismissed from this action for failure to serve under Rule 4(m) of the Federal Rules of Civil Procedure.
BACKGROUND
Plaintiff brought this civil action against the above-named Defendants pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights. ECF No. 1. An Order authorizing service of process was entered on October 6, 2023; the Summons was issued that same day; and the Summons, USM-285 Forms, and the Complaint were forwarded to the United States Marshals Service (“USMS”) for service of process. ECF Nos. 24; 25. Thus, under Rule 4(m), the deadline for service was January 4, 2024. On December 12, 2023, the USMS filed a Summons returned executed. ECF No. 31. The returned USM-285 Forms each noted that the Summons and Complaint was served on each Defendant on December 8, 2023, by providing a copy to Christine Barrett, who is identified as the “Clerk of Council.” Id.
By Order dated October 5, 2023, Defendant Mount Pleasant Police Department was dismissed from this action. ECF No. 20.
On June 13, 2023, the Honorable Jacquelyn D. Austin filed a Report and Recommendation, recommending that the District Court dismiss this action without issuance and service of process pursuant to 28 U.S.C. § 1915A. ECF No. 12. By Order dated October 5, 2023, the Honorable Donald C. Coggins, Jr., adopted in part and declined to adopt in part the Report and Recommendation of Magistrate Judge Austin. ECF No. 20. Judge Coggins recommitted the matter to Magistrate Judge Austin with instructions to authorize service of process on the abovecaptioned Defendants. Id. at 4. On January 26, 2024, the case was reassigned to the undersigned Magistrate Judge. ECF No. 39.
Under Rule 4(m), if a defendant is not served within the requisite time period, the court may order that service be made within a specified time rather than dismiss the case. See Fed.R.Civ.P. 4(m). Moreover, if the plaintiff shows good cause for the failure to serve, the Court must extend the time for service for an appropriate period. Id.
Defendants then filed a motion to dismiss in lieu of an answer on December 29, 2023, arguing that the Court lacked personal jurisdiction over them because they had not been properly served as Christine Barrett was not authorized to accept service. ECF No. 33. By Order dated March 5, 2024, the Court instructed counsel for Defendants to notify the Court whether they were authorized to accept service of process of the Summons and Complaint on behalf of each Defendant and, if not so authorized, to file, under seal, each Defendant's last known address so that the USMS can effectuate service on Defendants. ECF No. 48. On March 7, 2024, counsel for Defendants filed a status report explaining that they had not been authorized to accept service on behalf of any of the Defendants. ECF No. 50. Counsel for Defendants further noted the Town of Mount Pleasant's corporate counsel was authorized to accept service on behalf of Defendant Stroder only and provided addresses under seal for Defendants Cardenas and Tew at their last known addresses. Id.
Defendants' motion was found as moot, without prejudice, by Order dated April 9, 2024. ECF No. 61.
A second Order authorizing service of process was entered on March 25, 2024; the Summons was issued that same day using the addresses provided by counsel for Defendants; and the Summons, USM-285 Forms, and the Complaint were forwarded to the USMS for service of process. ECF Nos. 53; 54; 56. On April 11, 2024, the USMS filed a Summons returned executed as to Defendant Officer Stroder. ECF No. 63. Defendant Stroder filed an Answer on April 19, 2024. ECF No. 64.
This Defendant notes that he was incorrectly identified as “Officer Stroder” in the Complaint and that his correct identification is “Officer Strode.” ECF No. 64 at 1.
On April 30, 2024, the USMS filed a Summons returned unexecuted as to Defendant Officer Cardenas. ECF No. 65. In the Remarks section, the USMS noted that “service was attempted [at the address provided]” but the landlord at that address stated Cardenas “had moved to Missouri 1.5 years ago.” Id. The USMS “used open source information to investigate Cardenas current whereabouts, which led to being unable to locate his current home address.” Id. On May 7, 2024, the USMS filed a Summons returned unexecuted as to Defendant Officer Tew. ECF No. 68. In the Remarks section, the USMS noted that “Defendant was not at listed address.” Id.
On May 21, 2024, the Court entered another Order requiring Plaintiff to provide the Court with an address at which the unserved Defendants could be served and to complete and return to the Court a Summons and USM-285 Form for the two unserved Defendants. ECF No. 71. In that Order, Plaintiff was specifically warned as follows:
The United States Marshal cannot serve an inadequately identified defendant. Further, unserved Defendants may be dismissed as parties to this case if not served within the time limit governed by
Rule 4(m). Accordingly, this Order is entered to allow Plaintiff one FINAL opportunity to provide information sufficient to effectuate service on the unserved Defendants. If Plaintiff is unable to provide such information, Defendants Cardenas and Tew may be dismissed pursuant to Rule 41.Id. at 3 (emphasis in original).
On June 11, 2024, Plaintiff filed a response to the Court's Order. ECF No. 77. In his response, Plaintiff contends that the USMS' “claims of [being] unable to locate Defendant Officer Cardenas and Officer Tew are frivolous.” Id. He also asserts that Defendant Cardenas was located and deposed in a state court case arising from the incident at issue in this case. Id. However, Plaintiff's response does not provide any information regarding where the unserved Defendants may be served.
DISCUSSION
In a case, such as this one, in which the district court permits the plaintiff to proceed in forma pauperis, the district court must direct the USMS to effectuate service of process. 28 U.S.C. § 1915(d); Fed.R.Civ.P. 4(c)(3); see Robinson v. Clipse, 602 F.3d 605, 608 (4th Cir. 2010) (“In forma pauperis plaintiffs must rely on the district court and the U.S. Marshals Service to effect service of process according to 28 U.S.C. § 1915.”). “However, the plaintiff must provide sufficient information to locate the defendant with ‘reasonable effort.'” Gardner v. Dial, No. 2:16-cv-03547-BHH-MGB, 2017 WL 9673666, at *2 (D.S.C. Oct. 20, 2017) (citation omitted), Report and Recommendation adopted by 2018 WL 1128119 (D.S.C. Mar. 2, 2018). “Although court officers are responsible for serving process on the indigent plaintiff's behalf, the court is not responsible for properly identifying defendants or locating appropriate service information for the plaintiff.” Ray v. Pursell, No. 2:14-cv-27457, 2017 WL 3707584, at *3 (S.D. W.Va. June 23, 2017), Report and Recommendation adopted by 2017 WL 3699750 (S.D. W.Va. Aug. 25, 2017). Instead, “[i]t is Plaintiff's burden to provide adequate information about the addresses where Defendants may be served.” Thomas v. Bronco Disaster Relief, No. 1:09-cv-997, 2010 WL 11530917, at *1 (E.D. Tex. Jan. 12, 2010).
Here, the USMS, as directed by the Court, has made multiple attempts to effectuate service of process using various addresses at which Defendants were thought to be located. However, the USMS has been unable to locate Officers Cardenas and Tew with reasonable effort. Plaintiff has been given multiple opportunities to locate Defendants but has failed to do so nor has he provided a reason for his failure to do so.
“Rule 4(m) requires the dismissal of defendants who remain unserved ninety days after the filing of a complaint unless ‘the plaintiff shows good cause.'” Attkisson v. Holder, 925 F.3d 606, 627 (4th Cir. 2019), as amended (June 10, 2019). Here, Plaintiff has failed to show good cause for the failure to serve the two unserved Defendants. He has offered no evidence, for example, showing that these Defendants have evaded service. The Court finds that further extensions of time and attempts to serve the unserved Defendants in this case are unwarranted. The Complaint was filed more than a year ago. Plaintiff has been given multiple opportunities to locate the two unserved Defendants and provide the Court with proper service documents. The Court has directed the USMS to attempt service on multiple occasions, but the Defendants could not be located. Upon instruction by the Court, the unserved Defendants' former employer provided their last known addresses under seal. However, the unserved Defendants were unable to be located at those addresses to effectuate proper service. Ultimately, the burden lies with Plaintiff to identify Defendants and provide addresses for proper service. See Jennings v. Bridges, No. 4:19-cv-0200-JPB-WEJ, 2021 WL 11718235, at *1 (N.D.Ga. Aug. 5, 2021) (“Although an in forma pauperis litigant is entitled to rely on the U.S. Marshals Service to effect service, it remains the plaintiff's burden to provide a current address for each defendant, so that the U.S. Marshals Service can effect service within the 90-day period.”), Report and Recommendation adopted by 2021 WL 11718252 (N.D.Ga. Aug. 24, 2021). Given the many attempts in this case to serve Defendants Cardenas and Tew, it appears that service of process is not possible on the information before the Court as Plaintiff has not provided the USMS with an address sufficient to complete service. See Ross v. David, No. S-09-cv-0984-KJM-CMK-P, 2011 WL 13142115, at *1 (E.D. Cal. Oct. 31, 2011) (dismissing an unserved defendant and noting “[s]ervice has been attempted on this last remaining defendant several times, unsuccessfully,” and finding the plaintiff had failed to provide the USMS with an address sufficient to complete service), Report and Recommendation adopted by 2012 WL 12904656 (E.D. Cal. Mar. 13, 2012), aff'd, 509 Fed.Appx. 654 (9th Cir. 2013). As such, Defendants Cardenas and Tew should be dismissed from this case. See Fed.R.Civ.P. 41(b); see also Link v. Wabash R.R. Co., 370 U.S. 626, 629-32 (1962) (noting that federal courts have the inherent power to dismiss an action for failure to prosecute either sua sponte or on the motion of a party).
As to Plaintiff's assertion that Defendant Cardenas was located and deposed in a state court case, the undersigned notes that Defendant Cardenas was not a party to Plaintiff's state court case filed in the Charleston County Court of Common Pleas and that the discovery period in that case predated the present action. Thus, whether Defendant Cardenas was located in relation to that case does not show that he can be located or is evading service in the present case.
CONCLUSION AND RECOMMENDATION
Therefore, based upon the foregoing, it is recommended that Defendants Officer Cardenas and Officer Tew be DISMISSED from this action without prejudice. The action remains pending as to Officer Stroder.
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 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
250 East North Street
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).