Opinion
C. A. 5:23-3706-DCC-KDW
01-19-2024
Bennie McBeth, Plaintiff, v. South Carolina Department of Corrections; Tonya James; Lt. D. Brown; and Jane Doe, Defendants.
REPORT AND RECOMMENDATION
KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE
Plaintiff, proceeding pro se and in forma pauperis, brought this action alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983. This matter comes before the court on Plaintiff's Motion for Entry of Default. ECF No. 30, and Motion for Default Judgment, ECF No. 37. Pursuant to 28 U.S.C. § 636(b)(1)(B), and Local Rule 73.02(B)(2)(e), D.S.C., this magistrate judge is authorized to review pretrial matters in cases involving pro se litigants and submit findings and recommendations to the district court.
On December 11, 2023, Plaintiff filed a Motion for Entry of Default. ECF No. 30. Plaintiff requests the Clerk of Court enter default against Defendant Devon Brown and Defendant Jane Doe because they “failed to appear or otherwise answer” the Complaint. ECF No. 30. Attached to his Motion for Entry of Default is his affidavit. He states that Defendants were served a copy of the Complaint and Summons on September 19, 2023. See Affidavit of Bennie J. McBeth, attached to Pl.'s Motion at ECF No. 30-1. He argues pursuant to Federal Rule of Civil Procedure 12(a)(i), these Defendants were to file an answer or responsive pleading within 21 days after being served, but they failed to do so. Id. He therefore requests that pursuant to Federal Rule of Civil Procedure 55(a), the Clerk of Court enter default against Defendants Brown and Doe. Id.
Rule 55(a) of the Federal Rules of Civil Procedure provides that “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.” Fed.R.Civ.P. 55(a). Pursuant to Federal Rule of Civil Procedure 4(e), service is effected on an individual by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made.” Alternatively, Rule 4(e)(2) indicates that service is effected on an individual by:
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.
The South Carolina Rules of Civil Procedure provide for service by certified mail, return receipt requested, and delivery restricted to the addressee. See SCRCP Rule 4(d)(8). The undersigned has reviewed the docket, briefs, and exhibits to same, and finds that Plaintiff did not effectuate service on Defendants Brown and Doe in compliance with Federal Rule of Civil Procedure 4(e).
On September 25, 2023, Defendant Devon Brown's Process Receipt and Return, Form USM-285, was docketed and reflected the fact that this Defendant had not been served as the identifying information was insufficient to effectuate service. See ECF No. 21. Similarly, on that same date, Defendant Jane Doe's Form USM-285 was docketed, reflecting the fact that this Defendant was unable to be served because of insufficient information provided to identify the person. See ECF No. 22. Thus, these Defendants have not been served in accordance with Rule 4(e) of the Federal Rules of Civil Procedure. Accordingly, it is recommended that the Motion for Entry of Default, ECF No. 30, be denied.
For the same reasons, the undersigned recommends denying Plaintiff's Motion for Default Judgment, ECF No. 37. While Plaintiff states in his affidavit attached to this Motion that he served a copy of the Complaint and Summons on September 19, 2023, the Forms USM-285 affirmatively show that Defendants Brown and Doe have not been properly served. Accordingly, it is recommended that Plaintiff's Motion for Default Judgment, ECF No, 37, be denied.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
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 Court
Post Office Box 2317
Florence, South Carolina 29503
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).