Opinion
Civil Action 22-991
07-27-2023
JOSHUA C. LOWRY, ANTHONY LAW, RAYMAR MCKENZIE, JAMES SMITH, MICHAEL CHAMPION, Plaintiffs, v. DENA BROWN TRINITY GROUP SER VICE STAFF, BENJAMIN O'LEARY TRINITY GROUP SERVICE STAFF, CORITHIAN FOODS FOOD DISTRIBUTOR FOR TRINITY GROUP SERVICE, JENNIFER PASSERELLI DEPUTY WARDEN, DAVID WINTERS CAPTAIN, SCOTT UNKNOWN TRINITY GROUP SERVICE STAFF, JANICE UNKNOWN TRINITY GROUP SERVICE STAFF, Defendants.
David S. Cercone District Judge
REPORT AND RECOMMENDATION
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
It is respectfully recommended that the Court dismiss the Amended Complaint against Defendant Corithian Foods pursuant to Federal Rule of Civil Procedure 4(m).
II. REPORT
The Complaint in this case was filed on July 27, 2022, by five prisoners confined at the Butler County Prison. ECF Nos. 1, 6. Through their Amended Complaint, Plaintiffs allege claims against Butler County Prison officials, the prison food distributor, and the prison meal service provider for consistently failing to provide sufficient food portions, resulting in malnourishment. ECF No. 29.
On March 6, 2023, the Court issued an Order to Show Cause why this action should not be dismissed against Defendant Corithian Foods pursuant to Federal Rule of Civil Procedure 4(m) because Plaintiffs failed to provide a valid address for service of the Amended Complaint. ECF No. 35. On March 14,2023, the Order to Show Cause issued to Plaintiffs Michael Campion, Joshua C. Lowry, and James Smith was returned as undeliverable. ECF Nos. 36-38. On March 30, 2023, Plaintiff Anthony Law filed a Motion for Extension of Time to File a Response and on March 31, 2023. the Court granted Law an extension of time until April 21, 2023. ECF Nos. 47, 48. The Court later received new mailing addresses for Plaintiffs Champion, Lowry, and Smith. ECF No. 52. In the interest of justice, these Plaintiffs were granted additional time until May 25, 2023, to respond. ECF Nos. 52, 53. To date, the Court has not received a response from any named Plaintiff, and the Amended Complaint remains unserved as to Corithian Foods.
“While [in forma pauperis] status confers an entitlement to issuance and service of process, see 28 U.S.C. § 1915(d) and Fed.R.Civ.P. 4(c)(3), the plaintiff must provide sufficient information for the court to do so.” Harris v. McMullen, 609 Fed.Appx. 704, 707 (3d Cir. 2015) (citing Lee v. Armontrout, 991 F.2d 487, 489 (8th Cir. 1993)). In other words, it is Plaintiffs responsibility to properly identify all defendants and provide accurate mailing addresses for them so that service may occur.
Federal Rule of Civil Procedure 4(m) provides that the district court must dismiss an action without prejudice as to a defendant after notice to the plaintiff if service of the complaint is not made upon that defendant within 90 days after the complaint is filed. Fed.R.Civ.P. 4(m). The language of Rule 4(m) is both clear and mandatory. Where there is an unjustified and unexcused failure to timely serve a complaint the court “must dismiss the action.” See Beckerman v. Susquehanna Twp. Police, 254 Fed.Appx. 149,154 (3d Cir. 2007). In this case, the Court finds there is no justification or excuse for Plaintiffs' failure to timely serve the Amended Complaint on Defendant Corithian Foods.
Accordingly, it is recommended that the Court dismiss this civil action against Defendant Corithian Foods without prejudice pursuant to Federal Rule of Civil Procedure 4(m).
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties may file written objections within fourteen days, or seventeen days for unregistered ECF Users. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v, Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may respond to the objections within 14 days thereafter in accordance with Local Civil Rule 72.D.2.