Opinion
C. A. 0:23-4838-JDA-SVH
04-02-2024
Alexis Carberry, Plaintiff, v. Lancaster County Sheriff Office Individually and represented by Barry Faile; Lancaster County Magistrate Court represented by Chief Judge Curthisa Ingram; SCDMV through Kevin Shwedo; and SCDSS through Michael Leach, Defendants.
REPORT AND RECOMMENDATION
Shiva V. Hodges United States Magistrate Judge
Plaintiff, proceeding pro se, brought this action alleging violations of her rights by Lancaster County Sheriff's Office (“LSCO”) through Lancaster County Sheriff Barry Faile (“Sheriff Faile”); Sheriff Faile individually; Lancaster County Magistrate Court (“LCMC”) through state Magistrate Judge Curtisha M. Ingram (“Judge Ingram”); South Carolina Department of Motor Vehicles (“SCDMV”) through Kevin Shwedo; and South Carolina Department of Social Services (“SCDSS”) through Michael Leach. [See ECF No. 24].
This matter is before the court on Plaintiff's response to this court's order to show cause issued February 28, 2024. [See ECF Nos. 41, 45]. All pretrial proceedings in this case were referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.). For the following reasons, the undersigned recommends dismissal of SCDMV and SCDSS without prejudice.
I. Factual and Procedural Background
Plaintiff originally filed this case in the Lancaster County Court of Common Pleas against LSCO, Sheriff Faile, LCMC, and Judge Ingram (collectively Lancaster Defendants”). Lancaster Defendants removed this action on September 27, 2023. [See ECF No. 1].
Lancaster Defendants filed a motion to dismiss on October 4, 2023 [ECF No. 8], and Plaintiff responded by filing a motion to amend/correct the complaint on October 27, 2023 [ECF No. 14]. In her amended complaint, Plaintiff named two new defendants, SCDMV and SCDSS, in addition to the original defendants. [ECF No. 24]. On November 15, 2023, the undersigned issued an order granting Plaintiff's motion to amend, directing the Clerk of Court to file the motion to amend as an amended complaint and to issue summonses for the new defendants, and directing Plaintiff to serve copies of the summons and complaint on each defendant. [ECF No. 22]. The Clerk of Court issued the summonses and mailed copies of the text order at ECF No. 22, the amended complaint, and the summonses to Plaintiff at the address on record on November 16, 2023. [ECF No. 27].
On November 29, 2023, the Lancaster Defendants filed a motion to dismiss the amended complaint. [ECF No. 29]. As Plaintiff is proceeding pro se, the court entered an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising her of the importance of the motion and of the need for her to file an adequate response by January 3, 2024. [ECF No. 30]. Plaintiff was specifically advised that if she failed to respond adequately, the motions may be granted. See id. Plaintiff did not file a timely response.
On January 12, 2024, the court ordered Plaintiff to advise by January 26, 2024, whether she opposed the motions and wished for the court to dismiss the Lancaster Defendants as parties to this action. [ECF No. 34]. Plaintiff was further advised that if she failed to respond, the undersigned would recommend the Lancaster Defendants be dismissed for failure to prosecute. See id. Again, Plaintiff filed no response.
On February 5, 2024, the undersigned issued a report and recommendation that remains pending with the district judge, recommending the dismissal of the Lancaster Defendants for failure to prosecute. [ECF No. 36]. In the order, the undersigned also noted that in accordance with Fed.R.Civ.P. 4(m), SCDMV and SCDSS must be served with copies of the summons and complaint by February 14, 2024. See id.
On February 15, 2024, Plaintiff filed an objection to the February 5, 2024 report and recommendation, arguing in part that she had responded to Lancaster Defendants' motion to dismiss, but citing documents she had filed before the Lancaster Defendants filed their motion. [ECF No. 38]. In her objection, Plaintiff also claims that, as she is proceeding pro se and in forma pauperis, she is entitled under Fed.R.Civ.P. 4 to have service performed by a U.S. Marshal on SCDMV and SCDSS. See id.
Fed.R.Civ.P. 4(c)(3) provides as follows: At the plaintiff's request, the court may order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court. The court must so order if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915 or as a seaman under 28 U.S.C. § 1916.
II. Show-Cause Order
On February 28, 2024, the undersigned issued an order to show cause, placing Plaintiff on notice that unless she filed proof of service as to SCDSS and SCDMV or showed good cause to the court by March 27, 2024, for her failure to effect service of the summons and complaint on these defendants, her action would be recommended for dismissal without prejudice. [ECF No 41].
In the show-cause order, the court informed Plaintiff that she was not proceeding in this case in forma pauperis, despite her assertions otherwise:
Plaintiff originally filed the case in the Court of Common Pleas in Lancaster County, South Carolina, and served the original defendants, who removed the case to this court on September 27, 2023. [ECF Nos. 1, 1-1]. It is not entirely clear from the notice of removal whether Plaintiff paid a filing fee or was granted leave to proceed in forma pauperis (“IFP”) in the state court, but the evidence in the record suggests she was not. See ECF No. 1-1 at 7 1-1 at 7 (Certificate of Service reflecting Plaintiff served LCSO and
LCMC “by USPS Certified Mail”); ECF No. 1-1 at 8 (“Motion and Affidavit to Proceed In Forma Pauperis” dated August 25, 2023, with no box checked to indicate whether leave was granted or denied); ECF No. 1-1 at 13-14 (“Addendum to IFP Petition” dated August 25, 2023, indicating the court denied Plaintiff's “request for IFP status” on July 28, 2023, and requesting the matter be reconsidered). Nevertheless, Plaintiff never requested leave to proceed IFP in this case in this court. Accordingly, Fed.R.Civ.P. 4(c)(3) does not require the court to order service by a United States marshal or deputy marshal.Id. at 2.
The court additionally informed Plaintiff as follows:
In her objections to the report and recommendation, Plaintiff “requests the court appoint a U.S. marshall to perform service.” [ECF No. 38 at 2]. She has not provided any reason to support her request or alleged she was frustrated in her attempts to serve SCDSS and SCDMV. In fact, she has not alleged she made any attempt to serve them. As noted above, Plaintiff was advised of her obligation to serve SCDSS and SCDMV upon receipt of the November 15, 2023 order and reminded of this obligation upon receipt of the January 12, 2024 order and made no request that the court appoint a marshal to serve the summons and complaint until the period for service of process had expired.
Plaintiff is hereby placed on notice that unless she files proof of service as to SCDSS and SCDMV or shows good cause to the court by March 27, 2024, for her failure to effect service of the summons and complaint on these defendants, her action will be recommended for dismissal without prejudice. Plaintiff is reminded of Fed.R.Civ.P. 4(1), which requires proof of service be made to the court. Plaintiff's failure to respond in writing will result in a recommendation of dismissal of defendants SCDMV and SCDSS without prejudice.Id. at 5-6.
On April 1, 2024, Plaintiff filed a response to the court's show-cause order. [ECF No. 45]. In relevant part, she states as follows:
On February 15, 2024, Docket #38, Plaintiff advised the court that they are proceeding Pro Se and IFP and that according to Civil law of procedure, Rule 4(3) Service is made by a Marshall or Someone Specially Appointed. It was at that time that the plaintiff's made the request to the court to make service by a United States Marshal or Deputy Marshal or by a person specially appointed by the court. Magistrate Hodges ignored that request and instead issued an Order to show cause on February 28th, 2024.Id. at 1-2. Plaintiff does not otherwise address the show-cause order or provide any explanation how Fed.R.Civ.P. 4(c)(3) applies to her.
She additionally repeats her argument that she is not opposed to defendants signing a waiver for service. However, as she was already informed by the court: “[I]t does not appear that waiver of service is appropriate, as SCDMV and SCDSS are not subject to service under Fed.R.Civ.P. 4(e), (f), or (h). As state agencies, they must be served in accordance with Fed.R.Civ.P. 4(j)(2).” [ECF No. 41 at 5].
Plaintiff's response to the court's show cause order is inadequate. Accordingly, the undersigned recommends the dismissal of SCDMV and SCDSS without prejudice.
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
901 Richland Street
Columbia, South Carolina 29201
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).