United States District Court, W.D. Arkansas, Hot Springs Division
KYOMI POSTLEY et al. PLAINTIFFS
HOUSING AUTHORITY OF THE CITY OF HOT SPRINGS, ARKANSAS et al. DEFENDANTS
REPORT AND RECOMMENDATION OF THE UNITED STATES
BARRY A. BRYANT U.S. MAGISTRATE JUDGE
the Court are Plaintiff's Motion to Request the Court
Appoint a Curator or In The Alternative Conduct In Camera
Review (ECF No. 38) and Plaintiff's failure to obtain
service on two named Defendants. Plaintiff's Motion to
Request the Court Appoint a Curator or In The Alternative
Conduct In Camera Review (ECF No. 38) was referred to the
undersigned for consideration and both these matters are ripe
for the Courts Consideration.
August 22, 2017, Summons was issued for Defendants Barbara
Baer (“Baer”) and Kenya Tate
(“Tate”). ECF No. 6. On that same date, the U.S.
Marshal was directed to serve at Barbara Baer 1004 Illinois
Street Hot Springs, Arkansas 71901and Kenya Tate at 201
Elmhurst Street Hot Springs, Arkansas 71913. ECF No. 5.
September 8, 2017, Summons was returned un-executed as to
Barbara Baer. The United States Post Office returned as not
known and unable to forward. ECF No. 8. On October 4, 2017,
Summons was returned un-executed as to Kenya Tate. The United
States Post Office returned as not known and unable to
forward. ECF No. 17.
Only Clerk's Notice of January 2, 2017, the District
Clerks office directed Plaintiff to file proof of timely
service, or a statement as to when such proof would be filed,
by January 17, 2018. On January 18, 2018 Plaintiff responded
by stating the address for Defendant Tate was the only one
found on the internet and the address for both Defendant Baer
and Tate would be the address at the Housing Authority of Hot
Springs. ECF No. 36. Service on Defendant Baer was attempted
at the address of Housing Authority of Hot Springs previously
and was unsuccessful. ECF Nos. 5 and 8.
January 19, 2018, Plaintiff was Ordered to provide a valid
address for serving Defendant Baer and Tate by February 5,
2018. ECF No. 37. Plaintiff was informed that failure to do
so may result in a recommendation that her case, as to these
Defendants, be dismissed for her failure to prosecute this
January 31, 2018, Plaintiff filed a Motion to Request the
Court Appoint a Curator or In The Alternative Conduct In
Camera Review. ECF No. 38. In this Motion, Plaintiff stated
she provided to the Court all addresses she could find for
Defendants Baer and Tate, but has never known these
Defendants' personal addresses. Id. She stated
she believes the Defendants are not accepting summons, but
offers no support for this statement. Id. Plaintiff
again stated she did not have financial resources to find
these Defendants. Id. Plaintiff makes no specific
request in this Motion, however, the Court interprets it as a
request for assistance in discovering the addresses of
Defendants Baer and Tate.
an in forma pauperis plaintiff's responsibility
to provide the Court with an address for proper service on
defendants named in their complaint. “While in
forma pauperis plaintiffs should not be penalized for a
marshal's failure to obtain proper service, it was
[plaintiff's] responsibility to provide proper addresses
for service on [the defendants].” Lee v.
Armontrout, 991 F.2d 487, 489 (8th Cir.) (per
curiam) cert. denied, 510 U.S. 875 (1993). In
this case, Plaintiff was put on notice by the Court that
service had not been effected on Defendants Baer and Tate.
Plaintiff was Ordered to provide a valid address for service
on these Defendants and was informed that failure to do so
could result in dismissal of her claims. ECF No. 37.
Plaintiff neither complied with the Order nor provided a
current address for Defendants Baer and Tate. Consequently,
her claims against Defendants Baer and Tate should be
dismissed without prejudice under Rule 4(m).
upon the foregoing, the Court recommends Plaintiff's
Motion to Request the Court Appoint a Curator or In The
Alternative Conduct In Camera Review (ECF No. 38) be
DENIED and Plaintiff's claims against
Defendants Baer and Tate be DISMISSED
without prejudice based on Plaintiff's failure prosecute
and failure to obey the orders of the Court in this Case.
See Fed. R. Civ. P. 4(m) and 41(b).
parties have fourteen (14) days from receipt of this Report
and Recommendation in which to file written objections
pursuant to 28 U.S.C. § 636(b)(1). The failure to file
timely objections may result in waiver of the right to appeal
questions of fact. The parties are reminded that objections
must be both timely and specific to trigger d ...