Opinion
1:18CV598
11-12-2020
JERMAINE ANTWAN TART, Plaintiff, v. MATTHEW THEODORE JOHNS, et al., Defendants.
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Jermaine Antwan Tart, a pro se prisoner, alleges numerous constitutional violations and brings this action against several Defendants pursuant to 42 U.S.C. § 1983. (See generally Complaint, Docket Entry 1; Am. Complaint, Docket Entry 18.) Several named Defendants in this action have been dismissed. (See Docket Entries 91, 100, 114.) Defendants Matthew Theodore Johns, Sgt. Eaton, Officer Smith, and Officer Hickman remain parties to this action. Of the remaining individuals, Defendants Matthew Theodore Johns, Officer Smith, and Officer Hickman remain unserved in this matter despite numerous attempts, through reissuance of summonses, and the good faith effort of the Forsyth County Attorney's Office upon the Court's request. (See Docket Entries 20, 29, 56, 58, 60, 71, 91, 94, 96.) As to Defendant Matthew Theodore Johns, the last service attempt by the U.S. Marshal reflects that the summons was returned to sender, unclaimed and unable to forward. (See Docket Entry 96.) As to Defendant Officer Smith, the last service attempt by the U.S. Marshal reflects that there was no "Sgt. Smith or Officer Smith to serve at the Forsyth County Jail." (Docket Entry 71.) Lastly, as to Defendant Hickman, the U.S. Marshal noted that he no longer works for the Forsyth County Sheriff's Office. (Docket Entry 60 at 1-2.) Given Plaintiff's inability to effectuate service of said Defendants after reasonable steps have been taken, and in light of Plaintiff's failure to show good cause to further extend the time to serve pursuant to Federal Rule of Civil Procedure 4(m), the undersigned will recommend that this action be dismissed without prejudice against Defendants Matthew Theodore Johns, Officer Smith, and Officer Hickman.
Plaintiff also names as a defendant, John Doe. (See Am. Compl. at 2.)
As to the remaining named Defendant, Sgt. Eaton, service has been effectuated and an Answer has been filed. (See Docket Entries 65, 74, 75.) Discovery had previously commenced in this matter (see Docket Entry 30) but was temporarily stayed pending further attempts to serve multiple Defendants. (See Docket Entry 56.) At this time, the undesigned will lift the stay to permit a brief period of discovery prior to the deadlines for filing dispositive motions. The remaining parties should be forewarned that they should work diligently in discovery efforts. Any requests for discovery extensions will be closely scrutinized. Accordingly,
IT IS HEREBY ORDERED that the temporary stay on discovery is LIFTED. The parties shall have up to and including December 3, 2020 to complete discovery in this matter. Dispositive motions shall be filed no later than December 24, 2020; responses to such motions shall be filed no later than January 8, 2021; and replies, if any, shall be filed no later than January 20, 2021.
IT IS RECOMMENDED that the claims against Defendants Matthew Theodore Johns, Officer Smith, and Officer Hickman be dismissed without prejudice.
/s/_________
Joe L. Webster
United States Magistrate Judge November 12, 2020
Durham, North Carolina