United States District Court, W.D. Arkansas, Hot Springs Division
O. Hickey United States District Judge.
the Court is the Report and Recommendation filed October 19,
2018, by the Honorable James R. Marschewski, United States
Magistrate Judge for the Western District of Arkansas. (ECF
No. 31). Plaintiff Robert Christopher Reed has filed
objections. (ECF No. 32). The Court finds the matter ripe for
January 9, 2018, Plaintiff filed this case pursuant to 42
U.S.C. § 1983, alleging constitutional violations that
occurred while he was incarcerated in the Arkansas Community
Correction T.V.P. Omega Unit. Specifically, Plaintiff alleges
that in the first week of January 2016, he was attending an
anger management class when Defendant Doe Teacher, the class
teacher, threw a chair that struck and injured him.
March 9, 2018, the Court issued summons to Defendant Doe
Teacher at the T.V.P. Omega Unit. On March 20, 2018, the
summons was returned unexecuted with a note that the facility
was unable to ascertain Defendant Doe Teacher's identify
without additional information. On March 21, 2018, and April
27, 2018, the Court entered orders directing Plaintiff to
provide additional information for Defendant Doe Teacher. The
Court's orders further informed Plaintiff that failure to
provide additional information could result in the dismissal
of his claims. On May 18, 2018, and June 13, 2018, the Court
granted Plaintiff extensions of time in which to provide
service information for Defendant Doe Teacher.
9, 2018, Plaintiff moved the Court to order Phillip Glover,
the administrator of the Arkansas Community Correction T.V.P.
Omega Unit, to provide the name and last-known address of
Defendant Doe Teacher. The Court granted this motion and
ordered Mr. Glover to provide service information for the
“Doe anger management teacher who was in charge of the
T.V.P. class attended by [Plaintiff] during the first week of
January 2016.” (ECF No. 24). On July 16, 2018, Mr.
Glover responded to the Court's order, identifying
Defendant Doe Teacher as Paula Evans and providing a
residential address. Also on July 16, 2018, the Court issued
service to Defendant Evans' address, which was
subsequently returned unexecuted on September 6, 2018.
October 19, 2018, Judge Marschewski issued the instant Report
and Recommendation. Judge Marschewski recommends that the
Court dismiss Plaintiff's case without prejudice for
failure to serve Defendant Evans within the Federal Rule of
Civil Procedure's prescribed time to do so. Specifically,
Judge Marschewski finds that Plaintiff filed this action on
January 9, 2018 and that, to date, Plaintiff has not provided
the Court with information allowing Defendant Evans to be
served. Judge Marschewski states that the Court cannot become
an agent for Plaintiff by tracing Defendant Evans'
location and, accordingly, Judge Marschewski concludes that
the Court should dismiss Plaintiff's claims without
prejudice pursuant to Federal Rule of Civil Procedure 4(m).
November 2, 2018, Plaintiff filed objections to the Report
and Recommendation. Plaintiff states that Mr. Glover
incorrectly identified Defendant Doe Teacher as Paula Evans
because Defendant Doe Teacher is male. Plaintiff states
further that Defendant Doe Teacher's name is listed on a
written grievance that Plaintiff filed with the Arkansas
Community Correction T.V.P. Omega Unit. Plaintiff asks the
Court to order Mr. Glover to produce discovery materials
related to Plaintiff's grievance form, disciplinary
record, and incident report so that Defendant Doe Teacher can
be correctly identified and served.
plaintiff generally shoulders the responsibility to serve a
copy of his complaint and the summons upon a defendant within
the time provided by the Federal Rules of Civil Procedure.
Fed.R.Civ.P. 4(c)(1). However, in the case of a plaintiff
proceeding in forma pauperis, like Plaintiff in this
case, the Court is obligated to issue process to a United
States Marshal, who must then effectuate service upon the
defendant. See 28 U.S.C. § 1915(c). Although
Plaintiff is relieved of the responsibility for service of a
summons and complaint, he must still provide the Court with
enough information to enable the United States Marshal to
effectuate service of process on a defendant. Lee v.
Armontrout, 991 F.2d 487, 489 (8th Cir. 1993).
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 or order that service must be made
within a specified time.” Fed.R.Civ.P. 4(m). However,
Rule 4(m) also requires that a court extend the time for
service for an “appropriate period” in situations
where a plaintiff shows “good cause” for failing
to serve a defendant within the ninety-day time for service.
Kurka v. Iowa Cnty., Iowa, 628 F.3d 953, 957 (8th
Cir. 2010). Alternatively, if a plaintiff fails to show good
cause, a court may extend the time for service rather than
dismiss the case against the unserved defendant if the
plaintiff establishes excusable neglect for such a
discretionary extension. Id.
initial matter, the Court notes that Plaintiff does not
dispute Judge Marschewski's finding that Plaintiff has
failed to provide any identifying information with which the
United States Marshal can effectuate service of process on
Defendant Doe Teacher. Moreover, Plaintiff's objections
do not provide information with which the United States
Marshal can serve Defendant Doe Teacher. Instead, Plaintiff
objects by asserting-for the first time, as far as the Court
can tell-that Defendant Doe Teacher is not Paula Evans and
that Defendant Doe Teacher's identity is contained within
an unspecified written grievance that Plaintiff filed at some
unspecified time when he was incarcerated in the Arkansas
Community Correction T.V.P. Omega Unit from November 2015
through February 2016. Although Plaintiff does not explicitly
argue that his time to serve Defendant Doe Teacher should be
extended, he does ask that the Court “hold this [c]ivil
action” until he is able to identify and serve
Defendant Doe Teacher. The Court will construe this as an
argument for an extension of Plaintiff's time to serve
Defendant Doe Teacher.
consideration, the Court finds that Plaintiff has not
demonstrated good cause for a mandatory extension of his time
to serve Defendant Doe Teacher. Plaintiff offers no
explanation why he has only now asserted that Mr. Glover
incorrectly identified Defendant Doe Teacher or why he cannot
obtain his purported grievance or otherwise identify
Defendant Doe Teacher without the Court's
assistance. Moreover, the Court twice warned Plaintiff
that this case could be dismissed if he failed to provide
identifying information for Defendant Doe Teacher and the
Court has twice granted month-long extensions of
Plaintiff's time to provide identifying information. When
Plaintiff asked the Court to order Mr. Glover to identify
Defendant Doe Teacher, the Court accommodated Plaintiff's
request, and Mr. Glover provided responsive information to
the Court's order. Afterwards, Plaintiff waited until
Judge Marschewski filed a Report and Recommendation
recommending dismissal of his case before asserting that Mr.
Glover's information was incorrect. In any event,
Plaintiff's twice-extended time to serve Defendant Doe
Teacher has expired and, absent any additional information
from Plaintiff, the Court finds that Plaintiff has not shown
good cause for an extension. For the same reasons, the Court
finds that Plaintiff has not demonstrated excusable neglect
for a permissive extension of time.
pro se plaintiffs are afforded leniency, they still
must comply with the Federal Rules of Civil Procedure.
Burgs v. Sissel, 745 F.2d 526, 528 (8th Cir. 1984)
(per curiam). It is undisputed that Plaintiff has failed to
comply with Rule 4(m) in this case by providing the Court
with sufficient information for the United States Marshal to
serve Defendant Doe Teacher, even after receiving multiple
extensions of time in which to do so. Thus, the Court finds
that Rule 4(m) requires the dismissal without prejudice of
Plaintiff's claims against Defendant Doe
Teacher. The Court finds that Plaintiff has offered
neither fact nor law which would cause the Court to deviate
from Judge Marschewski's Report and Recommendation.
Therefore, the Court overrules Plaintiff's objections and
adopts the Report and Recommendation (ECF No. 31) in
toto. Plaintiff's complaint is hereby
DISMISSED WITHOUT PREJUDICE.