United States District Court, Middle District of Tennessee, Nashville Division
MARSHALL H. MURDOCK, pro se, Plaintiff,
PATSY BRUCE, et al., Defendants
TO: THE HONORABLE KEVIN H. SHARP
REPORT AND RECOMMENDATION
JOHN S. BRYANT, United States Magistrate Judge.
Defendants Bruce, Cooper, Cole, Hakeem, Hill, Johnson, Jones, Schofield and Traughber have filed their motion to dismiss the complaint or, in the alternative, their motion for summary judgment (Docket Entry No. 43). As grounds, these Defendants argue that dismissal is appropriate pursuant to Federal Rule of Civil Procedure 4(m), which requires that a defendant be served within 120 days after the complaint is filed. Defendants maintain that they were not served for at least 17 months after the filing of the complaint.
Plaintiff Murdock has filed a reply in opposition (Docket Entry No. 48). Defendant Traughber and the Tennessee Board of Parole have adopted Defendants’ motion to dismiss or for summary judgment (Docket Entry No. 56).
For the reasons stated below, the undersigned Magistrate Judge finds that Defendants’ motion to dismiss or, alternatively, for summary judgment should be denied.
STATEMENT OF THE CASE
Plaintiff Murdock, a prisoner proceeding pro se and in forma pauperis, has filed this civil rights action pursuant to 42 U.S.C. § 1983 alleging that the individual Defendants, members of the Tennessee Board of Parole and Probation, have violated Plaintiff’s due process rights by wrongfully denying Plaintiff parole (Docket Entry No. 11 at 4). For relief, Plaintiff seeks a declaratory finding that the denial of parole “was unlawful, illegal, void and is of no further force and effect” (Id. at 5). Plaintiff also seeks money damages.
Defendants have filed their motions to dismiss or for summary judgment.
STANDARD OF REVIEW
A party may obtain summary judgment by showing “that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a); Covington v. Knox County School Sys., 205 F.3d 912, 914 (6th Cir. 2000). The moving party bears the initial burden of satisfying the court that the standards of Rule 56 have been met. See Martin v. Kelley, 803 F.2d 236, 239 n.4 (6th Cir. 1986). The ultimate question to be addressed is whether there exists any genuine dispute of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Covington, 205 F.3d at 914 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). If so, summary judgment is inappropriate.
To defeat a properly supported motion for summary judgment, the nonmoving party must set forth specific facts showing that there is a genuine issue of material fact for trial. If the party does not so respond, summary judgment will be entered if appropriate. Fed.R.Civ.P. 56(e). The nonmoving party’s burden of providing specific facts demonstrating that there remains a genuine issue of material fact for trial is triggered once the moving party shows an absence of evidence to support the nonmoving party’s case. Celotex, 477 U.S. at 325. A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. In ruling on a motion for summary judgment, the Court must construe the evidence in the light most favorable to the nonmoving party, drawing all justifiable inferences in its favor. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
SUMMARY OF PERTINENT PROCEDURAL FACTS
From the record, it appears that Plaintiff filed his original complaint in this case on November 29, 2012, and that the Court granted Plaintiff’s application to proceed in forma pauperis on January 30, 2013. In the order granting Plaintiff IFP status the Court directed the Clerk to mail to the Plaintiff service packets (a summons and USM-285 service form) for each Defendant. Plaintiff was ordered to complete the service packets and return them to the Clerk’s office within 21 days, after which the Clerk was ordered to issue process to the Defendants (Docket Entry No. 7).
Plaintiff Murdock filed an amended complaint on April 26, 2013. On August 16, 2013, the undersigned Magistrate Judge issued an order requiring Plaintiff Murdock to show cause by August 30, 2013, why his complaint should not be dismissed for his failure to comply with the Court’s order requiring him to return completed service packets to the Clerk (Docket Entry No. 17). On August 28, 2013, Plaintiff filed his response and stated therein that he had never received the service packets from the Clerk, and that if the packets had been mailed they must have been “lost or misdirected” by the mail room at the Riverbend Maximum Security Institution where ...