Opinion
5:23-cv-00361-CAR-CHW
05-21-2024
TOVORIS GORDON, Plaintiff, v. REGINALD CLARK, et al., Defendants.
Proceedings Under 42 U.S.C. §1983 Before the U.S. Magistrate Judge
ORDER AND RECOMMENDATION
CHARLES H. WEIGLE, UNITED STATES MAGISTRATE JUDGE
Defendant Lieutenant Darren Troutman, through counsel, has filed a motion to dismiss this case, arguing that Plaintiff has failed to effect service of process and that Plaintiff's claims against him are barred by the statute of limitations. Because both arguments are without merit, it is hereby RECOMMENDED that Defendant's motion to dismiss (Doc. 40) be DENIED.
Defendant Troutman further ORDERED to SHOW CAUSE, within 14 days of the date of this Order and Recommendation, why he should not be required to reimburse the Court for costs of service in the amount of $66.34, as required by Rule 4(d)(2) of the Federal Rules of Civil Procedure.
Defendant first contends that he “has not been personally served in the eight months since this suit has been pending.” (Doc. 40-1, p. 2). This claim is false. Defendant has been personally served. The record shows that the Court entered an order on December 28, 2023, directing the United States Marshals Service to effect service of process on Defendant pursuant to the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(d). (Doc. 7). On January 1, 2024, the Marshals Service mailed a request for waiver of service pursuant to Fed.R.Civ.P. 4(d) to Defendant at Baldwin State Prison. On March 14, 2024, after Defendant had failed or refused to return the waiver of service, the Court directed the Marshals Service to make personal service on Defendant. (Doc. 21). A return of service shows that a Deputy United States Marshal effected personal service on Darren Troutman at an address in Macon, Georgia, on March 28, 2024, at a cost to the Court of $66.34. (Doc. 31).
Defendant next argues that “Plaintiff's claims are barred by the statute of limitations and by his failure to serve Troutman for eight months after the running of the statue of limitations.” (Doc. 40-1, p. 4). In the case of a prisoner proceeding in forma pauperis, under the PLRA it is the responsibility of the Court, acting through the Marshals Service, to effect service of process. Because the Court has the obligation to effect service, Plaintiff “is entitled to rely upon service by the U.S. Marshals and should not be penalized for failure of the Marshal's Service to properly effect service of process, where such failure is through no fault of the litigant.” Rance v. Rocksolid Granit USA, Inc., 583 F.3d 1284, 1287 (11th Cir. 2009) (quoting Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987)).
The record shows that Plaintiff commenced this case two days prior to the expiration of the statute of limitations. In arguing that this action is barred by the statute of limitations, counsel seems to be unaware of the long-established “mailbox rule,” which provides that “a prisoner's court filing is deemed filed on the date it is delivered to prison authorities for mailing.” Jeffries v. United States, 748 F.3d 1310, 1314 (11th Cir. 2014) (quoting United States v. Glover, 686 F.3d 1203, 1205 (11th Cir. 2012)); see also Garvey v. Vaughn, 993 F.2d 776, 780 (11th Cir. 1993) (mailbox rule applies in cases under 42 U.S.C. § 1983). Absent evidence to the contrary, courts “assume that a prisoner delivered a filing to prison authorities on the date that he signed it.” Jeffries, 748 F.3d at 1314.
Although the Court received Plaintiff's complaint on September 20, 2023, Plaintiff states that he placed it in the mail on September 15, 2023. (Doc. 1, p. 7). Because there is no evidence to indicate that this date is false, the Court must deem the complaint filed on September 15, 2023. Plaintiff's complaint alleges that Defendants assaulted him on September 17, 2021. His complaint was therefore filed within the two-year statute of limitations. Mullinax v. McElhenney, 817 F.2d 711, 716 n.2 (11th Cir. 1987) (“the proper limitations period for all Section 1983 actions in Georgia is the two-year limitations period set forth in O.C.G.A. § 9-3-33”).
Defendant further contends that Plaintiff's action is barred by the statute of limitations because it did not commence until Defendant was served with process. This argument is also inconsistent with the law. Because Congress did not provide a statute of limitations, courts look to state tort law for determining the statute of limitations in actions under Section 1983. Otherwise, a Section 1983 claim remains a federal question claim, and federal law determines matters such as when an action accrues or when a suit commences. State law governs “[o]nly the length of the limitations period, and the closely related questions of tolling and application.” Wilson v. Garcia, 471 U.S. 261, 269 (1985); see also Mullinax, 817 F.2d at 716. Where a suitable federal law or rule exists, courts must apply that rule. Wilson, 471 U.S. at 267. There is a clear rule of federal law as to when an action commences, Rule 3 of the Federal Rules of Civil Procedure: “A civil action is commenced by filing a complaint with the court.”
Finally, Defendant cites several cases for the proposition that, under Georgia law, an action is not considered commenced until service of process is made. Johnson v. American Meter Co., 412 F.Supp.2d 1260 (N.D.Ga. 2004); Stevens v. Holder, 2014 WL 12799005 (N.D.Ga. Jan. 31, 2014); Veazey v. Young's Yacht Sale & Serv., Inc., 644 F.2d 475 (5th Cir. 1981). These decisions are not applicable to the present case. The Johnson case arises under diversity of citizenship jurisdiction and expressly notes that “State law concerning the applicable statute of limitations governs the outcome of this case because federal courts sitting in diversity must apply the controlling substantive law of the state.” Johnson, 412 F.Supp.2d at 1262-63. This case, by contrast, arises under federal question jurisdiction, and federal law applies. As noted above, because Section 1983 does not provide a statute of limitations, federal courts look to comparable state law to determine the applicable limitations period, but otherwise apply federal law to issues such as accrual of claims or commencement of actions. Rule 3, together with the mailbox rule, provides a clear federal rule for when a civil action commences. Stevens and Holder do not stand for the proposition that an action commences upon service of process, but instead involve orders to dismiss for untimely service under Rule 4(m) of the Federal Rules of Civil Procedure. This case is not subject to dismissal for untimely service because the Court was responsible for service of process, so any delay in service would be attributable to the Court, not the fault of the Plaintiff.
Prior to sending a Deputy United States Marshal out to effect personal service, the Court sent a request for waiver of service pursuant to Rule 4(d). Rule 4(d)(2) provides that a defendant who fails to return a waiver of service without good cause shall be liable for all expense incurred in effecting personal service. Defendant is therefore ORDERED, within 14 days of the date of this Order, to reimburse the Court for costs of service in the amount of $66.34 or to show good cause, in writing, for his failure to return a waiver as requested.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, WITHIN FOURTEEN (14) DAYS after being served with a copy thereof. Any objection is limited in length to TWENTY (20) PAGES. See M.D. Ga. L.R. 7.4. The District Judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are further notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO ORDERED AND RECOMMENDED