Opinion
Civil Action 20-1759
11-02-2023
KARL B. MANUEL, Plaintiff, v. C/O JOHN DOE #1; C/O JOHN DOE #2; C/O SERGENT WILES; C/O LT. DAILEY; MEDICAL PROVIDER; M.P.A. MRS. DARLA COWDEN, Defendants.
David S. Cercone District Judge.
REPORT AND RECOMMENDATION
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE.
I. RECOMMENDATION
It is respectfolly recommended that the Court dismiss the Amended Complaint against Defendants C/O John Doe #1 and C/O John Doe #2 pursuant to Federal Rule of Civil Procedure 4(m).
II. REPORT
Plaintiff Karl B. Manuel ("Plaintiff') is an inmate currently in custody at the Delaware James T. Vaugh Correctional Center. Plaintiff has presented a civil rights complaint in which he alleges that during his incarceration at the Pennsylvania State Correctional Institution at Fayette ("SCI-Fayette”), Defendants violated his constitutional rights by beating him during a property distribution and by failing to provide necessary medical treatment for injuries he sustained in the altercation. Plaintiff also alleges that he was placed in a cell where oleoresin capsicum ("O.C.”), had been sprayed. This caused Plaintiff to suffer an asthma attack that went untreated despite his requests for medical care. ECF No. 36. Plaintiff has been granted leave to proceed in forma pauperis. ECF No. 35. Pursuant to the Court's Amended Case Management Order, discovery closed on April 3, 2023. ECF No. 62. Plaintiff previously filed a Notice of Statement of Facts, ECF No. 57, and an Appendix listing witnesses and exhibits. The Court construes these documents as Plaintiffs Pretrial Statement.
Plaintiff identifies two “John Doe” defendants in his Amended Complaint, ECF No. 39, and in his Statement of Facts, ECF No. 57. Rule 4(m) of the Federal Rules of Civil Procedure requires that all defendants shall be served within 90 days after the complaint is filed. If a defendant is not served within 90 days the court “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.” Fed.R.Civ.P. 4(m). 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).
On May 15, 2023, this Court issued an Order requiring Plaintiff to show good cause by why the John Doe defendants should not be dismissed from this action pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. ECF No. 65. Plaintiff filed a Response to the Order to Show Cause setting forth the basis of his claims against the John Doe defendants but did not address his failure to identify these defendants or comply with Rule 4(m) by timely serving them with the Amended Complaint. ECF No. 70. Thus, Plaintiff has not shown good cause for the Court to refrain from its mandatory duty to dismiss the John Doe defendants.
Accordingly, it is recommended that the Court dismiss this civil action against Defendants C/O John Doe #1 and C/O John Doe #2 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.