United States District Court, W.D. Arkansas, Texarkana Division
TERRY L. ROSS PLAINTIFF
SHERIFF WOLCOX, Sevier County, Arkansas; NURSE S FLOUNAY, LPN Sevier County Jail; and DR. WILLIAM BARR DEFENDANTS
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE.
a civil rights action filed by Plaintiff Terry L. Ross
pursuant to 42 U.S.C. § 1983. Pursuant to the provisions
of 28 U.S.C. § 636(b)(1) and (3)(2011), the Honorable
Susan O. Hickey, Chief United States District Judge, referred
this case to the undersigned for the purpose of making a
Report and Recommendation. Currently before the Court is
Plaintiff's failure to provide an accurate address for
service on Defendant Dr. William Barr. After careful
consideration, the Court makes the following Report and
Terry L. Ross filed his complaint in this matter pro
se on March 5, 2019 in the Eastern District of Arkansas.
(ECF No. 2). On March 7, 2019, the case was transferred to
the Western District of Arkansas, Texarkana Division. (ECF
No. 3). After Dr. William Barr was identified as the
“Supervising ‘off-cite' Medical
Official/Sevier Co. Jail, Dequeen Medical Center” as
described in Plaintiff's Complaint on April 18, 2019, the
Court ordered service on Defendant Barr at the DeQueen
Medical Center, 1306 W. Collin Raye Drive, DeQueen, Arkansas
71832. (ECF No. 15). On May 6, 2019, the Court received
notice the summons was returned executed because the green
card had been signed by an individual at the DeQueen
hospital. (ECF No. 17). However, on June 12, 2016, the Court
received notice that Defendant Barr was no longer employed at
the hospital and that the summons had not been served on him.
(ECF No. 18). A second attempt to serve Defendant Barr in
person was made by the U.S. Marshal's service. Defendant
Barr could not be located. (ECF No. 23). To date, Defendant
Barr has not been served.
21, 2019, Plaintiff filed a Motion for Default Judgment
against Defendant Barr. (ECF No. 24). The Court denied
Plaintiff's motion and ordered him to provide an accurate
address for service on Defendant Barr on or before July 12,
2019. (ECF No. 26). In this order Plaintiff was informed that
failure to provide an address for service on Defendant Barr
by the Court's imposed deadline would result in the
dismissal of Defendant Barr as a party. Id. at p. 2.
To date, Plaintiff has not provided an address for service on
Defendant Barr and the order sent to Plaintiff has not been
returned an undeliverable.
Rule of Civil Procedure 4 requires the Court to order service
by the United States Marshal Service when a plaintiff
proceeds in forma pauperis (“IFP”) in
compliance with 28 U.S.C. § 1915. Fed.R.Civ.P. 4(c)(3).
“The officers of the court shall issue and serve all
process, and perform all duties in such cases”. 28
U.S.C. § 1915(d). Further, Rule 4 requires a defendant
be served within 90 days after the complaint is filed or the
Court must dismiss the complaint or order service be made
within a specified time. However, if the plaintiff can show
good cause for the failure, the court must extend the time
for service for an appropriate period. Fed.R.Civ.P. 4(m).
Dismissal is not required where service is ineffective,
instead, the court has the discretion to either dismiss the
action, or quash service but retain the case for further
attempts at service. See Marshall v. Warwick, 155
F.3d 1027, 1032 (8th Cir. 1998). Additionally, while
plaintiffs proceeding IFP are entitled to rely on the United
States Marshal Service to serve summons, an IFP Plaintiff is
ultimately responsible for providing the Court with a proper
address for service. See Mack v. Dillon, 594 F.3d
620, 622 (8th Cir. 2010) (citing Rance v. Rocksolid
Granit USA, Inc., 583 F.3d 1284, 1286-88, n. 3 (11th
Cir. 2009)); Lee v. Armontrout, 991 F.2d 487, 489
(8th Cir. 1993).
filed his complaint in this case on March 8, 2019. (ECF No.
2.) The Court has given Plaintiff more than thirty days to
provide the Court with an accurate address for service on
Defendant Barr. Despite two attempts by the United States
Marshal Service, Defendant Barr has not been located for
service. Accordingly, I recommend the case against Defendant
Barr be dismissed.
foregoing reasons, I recommend Plaintiff's Complaint (ECF
No. 2) be DISMISSED against Defendant Dr.
parties have fourteen days from receipt of the Report and
Recommendation in which to file written objections pursuant
to 28 U.S.C. Â§ 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