Opinion
C/A 9:20-cv-3917-HMH-MHC
06-22-2021
Allen Little Jr., Plaintiff, v. Ms. Samuel, Mr. K. Black, Ms. Edna, Ms. B. Singletary, Mr. McKenzie, Mr. M. Williamson, and Mr. Samuel, Defendants.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge
This action was filed by Plaintiff, proceeding pro se, on November 9, 2020, and Summonses were issued on December 18, 2020. ECF No. 14. On February 8, 2021, the Summons for Defendant Ms. Edna was returned unexecuted. ECF No. 19. The Return indicates that the United States Marshal has been unable to locate this Defendant and notes that the address provided on the summons (3239 Louis Rich Rd., Newberry, SC) is the Newberry County Detention Center. Id. The return further notes that “staff there could not identify any ‘Nurse Edna' at the facility. Need further information for proper service.” Id.
Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, “[i]f 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 . . . [b]ut if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.” Fed.R.Civ.P. 4(m); see Attkisson v. Holder, 925 F.3d 606, 627 (4th Cir. 2019), as amended (June 10, 2019) (“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.'”).
On February 10, 2021, the Court issued an Order advising Plaintiff that he is responsible for providing information sufficient to effect service on Defendants and that Defendant Ms. Edna may be dismissed as a party Defendant if she is not served with process. ECF No. 20. Plaintiff has not provided any additional information pertaining to Defendant Ms. Edna for purposes of service of process.
Unless Plaintiff has made proper service on Defendant Ms. Edna, this case against Ms. Edna is subject to dismissal. Therefore, Plaintiff is herein specifically advised and placed on notice that, in response to this Report and Recommendation, he is to provide good cause to the Court for any failure to serve Defendant Ms. Edna, within fourteen (14) days of the filing of this Report and Recommendation. Failure to do so may result in Defendant Ms. Edna being dismissed.
Based on the foregoing, the undersigned RECOMMENDS, pursuant to Rule 4(m), Fed. R. Civ. P., that this case be DISMISSED, without prejudice, as against Defendant Ms. Edna. However, if in response to this Report and Recommendation, Plaintiff submits to the Court materials clearly showing good cause for failure to serve Defendant Ms. Edna, then it is RECOMMENDED that this Report and Recommendation be VACATED and the matter returned to the undersigned for further proceedings.
In the event Plaintiff has failed to serve Defendant Ms. Edna with service of process, but submits material to the Court asserting good cause for such failure, whether or not to accept Plaintiff's assertions of good cause shall be in the discretion of the District Judge in his review of this Report and Recommendation. See, e.g., Brooks v. Johnson, 924 F.3d 104, 120 (4th Cir. 2019) (explaining that dismissal under Rule 4(m) is reviewed for abuse of discretion).
The parties are referred to the Notice Page attached hereto.
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 835
Charleston, South Carolina 29402
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).