Opinion
Civil Action 2:21-1053
08-15-2023
ANDY BUXTON, Plaintiff, v. JOHN WETZEL, MALINDA ADAMS, KAREN FEATHER, ADAM MAGOON and JANE DOE, Defendants.
David S. Cercone Judge
REPORT AND RECOMMENDATION
PATRICIA L. DODGE UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that the Court dismiss the unidentified and unserved Jane Doe defendant without prejudice because Plaintiff Andy Buxton failed to identify and serve her with the Amended Complaint (ECF 47) in accordance with Fourth Case Management Order (ECF 75) and Rule 4(m) of the Federal Rules of Civil Procedure.
II. Report
A. Relevant Background
During the events in question in this lawsuit, Plaintiff, who is proceeding pro se, was in the custody of the Pennsylvania Department of Corrections (“DOC”) and housed at SCI Mercer. The Amended Complaint (ECF 47), which is the operative pleading names as defendants: (1) John Wetzel, the former Secretary of the DOC; (2) SCI Mercer's Superintendent Malinda Adams; (3) Karen Feathers; and (4) Adam Magoon. It also lists a Jane Doe defendant. Plaintiff alleged that Defendants, as a group, violated his constitutional rights by exposing him to Covid from August 2020 through January 2021.
After the named Defendants filed their Answer (ECF 48) to the Amended Complaint, the Court issued a case management order (ECF 49). In this order, the Court directed that Defendants provide to Plaintiff by December 8, 2022: (1) all incident reports, grievances records, disciplinary reports, investigative reports or other similar documents in their possession concerning the alleged incidents described by Plaintiff in the Amended Complaint; (2) all records in their possession regarding Plaintiff that relate to his claims; and (3) any information in their possession that would enable Plaintiff to identify the Jane Doe defendant. The Court also ordered that Plaintiff must move to amend his complaint to identify the Jane Doe defendant no later than February 8, 2023 and that all discovery was to be completed by that same date.
On December 7, 2022, Defendants filed a notice stating that they complied with the directives of the case management order. (ECF 50.) However, Plaintiff later notified the Court that he did not receive Defendants' initial discovery disclosures, as well as the other filings in this case, because he failed to comply with his obligation to notify the Court and parties of any change of address. Once Plaintiff updated his address of record, the Court extended the dates set forth in the initial case management order. Pursuant to the operative case management order (the fourth, at ECF 75) the discovery phase of this case closed on June 21, 2023 and Plaintiff was to have filed a Notice identifying the Jane Doe defendant no later than by July 5, 2023.
On July 10, 2023, the Court issued an order (ECF 79) directing Plaintiff, who missed the deadline to identify the Jane Doe defendant, to show cause no later than by July 24, 2023 why this unidentified and unserved defendant should not be dismissed from this case for failure to effect service on her under Rule 4(m). Plaintiff filed no response to this order.
In the meantime, the named Defendants moved for summary judgment on July 12, 2023. (ECF 80, 81, 82 and 83.) Plaintiff filed his response opposing summary judgment on July 24, 2023. (ECF 85, 86, 87 and 88.) He does not mention the Jane Doe defendant in his filings opposing the named Defendants' motion for summary judgment. At this point, there is no indication that Plaintiff intends to pursue claims against a Jane Doe defendant. In any event, because discovery is closed and Plaintiff has not identified or served the Jane Doe defendant, the Court should dismiss her without prejudice for failure to serve her in accordance with Rule 4(m).
B. Discussion
Rule 4(m) provides:
If a defendant is not served within 90 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
Plaintiff was given ample opportunity through discovery in this case to learn the identity of the Jane Doe defendant. He failed to do so. The 90-day period set forth in Rule 4(m) has long since expired and Plaintiff has not shown good cause for his failure to identify and effectuate service on the Jane Doe defendant. The Court should therefore dismiss this unnamed defendant without prejudice. See, e.g., Lemmons v. Doe, No. 1:20-cv-328, 2022 WL 2067577 (W.D. Pa. June 8, 2022) (Paradise Baxter, J.) (dismissing case without prejudice in accordance with Rule 4(m) “based upon Plaintiff's failure, without good cause shown, to effectuate timely service” of the complaint on John and Jane Doe defendants).
III. Conclusion
Based on the above, it is recommended that the Court dismiss the Jane Doe defendant without prejudice. Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, the parties are allowed 14 days from the date of this Order to file objections to this Report and Recommendation. Failure to do so will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).