Opinion
C/A No. 6:19-cv-03576-JFA-KFM
10-27-2020
Tyrone G. Wade, Plaintiff, v. Head Nurse Cheryl Luerre, Nurse Collins, D. Franke, Nurse Brezzle, Head Nurse Ms. Olds, June Smith, Warden M. Stephan, Defendants.
REPORT OF MAGISTRATE JUDGE
This is an action filed by a state prisoner proceeding pro se and in forma pauperis. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in this case and submit findings and recommendations to the district court.
On December 26, 2019, the plaintiff's complaint was entered on the docket (doc. 1). The complaint sought damages from the defendants pursuant to § 1983 (id.). On February 12, 2020, the plaintiff's amended complaint was entered on the docket (doc. 18), and the plaintiff's second amended complaint (the operative pleading) was entered on the docket on March 9, 2020 (doc. 25). On May 12, 2020, the court entered an order authorizing partial service of process, instructing the Clerk of Court to issue the summonses and to forward them and Forms USM-285 to the United States Marshal Service ("USMS") for service of process upon defendants Nurse Ms. Owens, Nurse Practitioner Ms. Smith, Nurse Collins, D. Franke, Nurse Brezzle, Head Nurse Luerre, and Warden Stephan (doc. 28). The order informed the plaintiff that although his lawsuit would be served by the USMS, he was responsible for providing "information sufficient to identify the defendant on the Forms USM-285" (id. at 2). The order warned the plaintiff that pursuant to Federal Rule of Civil Procedure 4(m), if a defendant was not served within 90 days after the summons is issued, the unserved defendant(s) may be dismissed from the case (id.).
Simultaneously with the order authorizing partial service of process, the undersigned issued a Report and Recommendation recommending that defendants A/W Raymos and Brandy Lathan be dismissed from the action, along with the plaintiff's failure to protect and supervisory liability claims (doc. 29). The Honorable Joseph F. Anderson, Jr., Senior United States District Judge, adopted the report and recommendation on May 28, 2020 (doc. 42).
On June 15, 2020, the USMS filed documents indicating that it could not serve the summons and complaint on defendant Nurse Brezzle (doc. 46). The USMS attempted to serve this defendant, but noted as follows: "SCDC OGC cannot accept - could not find this defendant" (id.). Due to the returned unexecuted summons, on June 29, 2020, an order was issued instructing the plaintiff to provide a new Summons and Form USM 285 for Nurse Brezzle (doc. 53). The order reminded the plaintiff of the requirement in Federal Rule of Civil Procedure 4(m) that a defendant be served within 90 days of the issuance of the summons and warned the plaintiff that if he did not provide additional information for Nurse Brezzle that the court would recommend dismissing her as a defendant (id. at 1-2). On July 13, 2020, the plaintiff filed a letter indicating that he had been unable to obtain information regarding Nurse Brezzle and thus could not submit a new summons or Form USM 285 for Nurse Brezzle in compliance with the court's June 29, 2020, order (doc. 60). The letter further sought to re-add Nurse Brezzle as a party if at some point during litigation the plaintiff was able to determine Nurse Brezzle's first name (id.).
Because the plaintiff failed to provide information sufficient to identify Nurse Brezzle so the USMS could effectuate service, on August 31, 2020, the undersigned issued an order providing the plaintiff with fourteen (14) days to show good cause under Fed. R. Civ. P. 4(m) for failing to provide information to effectuate service upon Nurse Brezzle (doc. 81). The order warned the plaintiff that if he failed to respond to the order or show good cause the undersigned would recommend that Nurse Brezzle be dismissed from this action (id. at 3-4). The order further warned the plaintiff that further leave to amend his complaint (to reassert claims against Nurse Brezzle) would require the defendants' consent or leave from the court pursuant to Fed. R. Civ. P. 15(a)(2) (id. at 4). The plaintiff did not respond to the order, and the time for response has lapsed.
During this same time, the USMS filed documents indicating that it could not serve the summons and complaint on defendants Nurse Ms. Owens and Ms. Smith (doc. 83). Due to the returned unexecuted summonses, on September 29, 2020, an order was issued instructing the plaintiff to provide a new Summons and Form USM 285 for Nurse Ms. Owens and Ms. Smith (doc. 97). The plaintiff filed updated service documents identifying Nurse Ms. Owens as Head Nurse Ms. Olds and Ms. Smith as June Smith (doc. 102). Based upon this updated information for these two defendants, Attorney James E. Parham, Jr., was able to accept service on behalf of Ms. Olds and Ms. Smith (doc. 109).
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). Here, the plaintiff filed his lawsuit pro se and in forma pauperis. As such, the ninety day time limit did not run during the initial review of this case. Rather, it began to run on the date when the summons was issued, May 12, 2020 (doc. 30). Even tolling the time limit during the period the plaintiff was provided time to submit a new summons and Form USM 285 for Nurse Brezzle, the 90-day service deadline has expired. See Robinson v. Clipse, 602 F.3d 605, 608-09 (4th Cir. 2010) (tolling during initial review).
As noted, the plaintiff has had two opportunities to provide identifying information for Nurse Brezzle so that the USMS could effectuate service of process. Additionally, the plaintiff was warned that although his lawsuit would be served by the USMS, he was responsible for providing "information sufficient to identify the defendant on the Forms USM-285" (doc. 28 at 2). The undersigned also provided the plaintiff with an opportunity to show good cause for the failure to serve Nurse Brezzle, and warned the plaintiff that if he failed to respond or to provide good cause the undersigned would recommend dismissal of Nurse Brezzle (doc. 81). As noted, the plaintiff has failed to respond to the court's order. As such, because the plaintiff has failed to show good cause for the failure to serve Nurse Brezzle, the undersigned recommends that Nurse Brezzle be dismissed as a party defendant in this action.
Accordingly, it is recommended that defendant Nurse Brezzle be dismissed from this action pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. The plaintiff's attention is directed to the important notice on the next page.
IT IS SO RECOMMENDED.
s/ Kevin F. McDonald
United States Magistrate Judge October 27, 2020
Greenville, South Carolina
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
300 East Washington Street, Room 239
Greenville, South Carolina 29601
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); Un i ted States v. Schronce, 727 F.2d 91 (4th Cir. 1984).