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Bonds v. City of Ripley Police Department

United States District Court, W.D. Tennessee, Western Division

September 30, 2019

DONALD ORVELL BONDS, Plaintiff,
v.
CITY OF RIPLEY POLICE DEPARTMENT, JOHN PAVELETIC, Mayor, DONNELL BALTIMORE, Chief of Police, PAUL HANKINS, Board Member, NYRITA ALSTON, Board Member, BILLY CHIPMAN, Board Member, JANICE TREADWAY, Board Member, BILL DAVIS, Board Member, and ALONZO BEARD, Board Member, Defendants.

          ORDER ADOPTING IN PART REPORT AND RECOMMENDATION AND ORDER DIRECTING PLAINTIFF TO EFFECTUATE SERVICE WITHIN 45 DAYS

          MARK S. NORRIS, UNITED STATES DISTRICT JUDGE.

         Before the Court is the Chief Magistrate Judge's Report and Recommendation on Defendant's Motion to Dismiss for Insufficient Service of Process dated March 25, 2019 (“Report”). (ECF No. 29.) The Report recommends that Defendant's motion be granted and the action be dismissed without prejudice. (Id.) For the reasons set forth below, the Court ADOPTS the Report, except as to the recommendation for dismissal without prejudice. Defendant's motion is GRANTED to the extent it requests the Court order that service be made within a specified time.

         BACKGROUND

         As set forth in the Report,

[o]n May 25, 2018, Bonds, a former lieutenant with the Ripley Police Department, filed a pro se complaint against nine separate defendants, including the mayor, the police chief, and members of the Board of Aldermen of the City of Ripley, alleging race and color discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”) (Compl., ECF No. 1.) Bonds paid the $400 filing fee, (ECF No. 2), and on June 4, 2018, the clerk of court issued nine summonses to Bonds for service on the nine named defendants. (ECF Nos. 7-15.) On June 18, 2019, Bonds filed with the court Proofs of Service for all nine summonses. (ECF Nos. 16-24.)
According to the affidavit of Donna Buckner, City Recorder/Treasurer for the City of Ripley, Tennessee, filed by the Defendants in support of their motion to dismiss, the nine summonses were mailed by means of certified mail addressed to each named defendant at 110 S. Washington, Ripley TN 38063. (Buckner Aff., ECF 28-1.) The named defendants did not sign the certified mail receipts; instead Buckner signed the “green cards” attached to the envelopes addressed to the mayor, John Paveletic, and the six members of the Board of Aldermen - Paul Hankins, Nyrita Alston, Billy Chipman, Janice Treadway, Bill Davis, and Alonzo Beard, and a police dispatcher, Sandy Coss, signed the envelopes addressed to the Ripley Police Department and the police chief, Darrell Bonner. (Id.) Buckner did not mark the boxed labeled “agent” on the green cards when she signed them. (Id.) Buckner is not authorized to accept service for the mayor or the Board of Aldermen members, and Coss is not authorized to accept service for the Ripley Police Department, an agency of the City of Ripley, or for the police chief. (Id.) There were no copies of the complaint in any of the nine envelopes, and more than ninety days have passed since the complaint was filed and no defendant has been served with a copy of the complaint. (Id.) Pursuant to Local Rule 12.1(b), Bonds had 28 days to file a response to the Defendants' motion to dismiss. The time to do so has expired, and Bonds has not filed any response. Because Bonds has not responded and has not disputed the facts set forth in the sworn affidavits of the Defendants submitted in support of their motion to dismiss, the court decides the issue of the sufficiency of service of process as a question of law. See LSJ Inv. Co. v. O.L.D., Inc., 167 F.3d 320, 322 (6th Cir. 1999) (citing Friedman v. Estate of Presser, 929 F.2d 1151, 1154 (6th Cir. 1991) (noting that where facts are undisputed, determination of whether service of process is adequate is a question of law).

(ECF No. 29 at PageID 135-36.)

         Based on the above, the Report concludes that service on all nine defendants was insufficient, under both federal and Tennessee law because Plaintiff failed to serve a copy of the complaint along with the summonses. (ECF No. 29 at PageID 140.) Additionally, the Report finds that service upon the City of Ripley or the City of Ripley Police Department was insufficient because Plaintiff did not serve the summons and complaint on the Chief Executive Officer of the City of Ripley or the city attorney. (Id.) Finally, the Report finds that service upon the other Defendants was also insufficient because Plaintiff failed to serve someone authorized to receive service of process on their behalf. (Id.)

         Accordingly, the Report concludes that the court must either dismiss the case without prejudice or order that effective service be made in accordance with Rule 4(m) because Plaintiff did not make proper service of process within 90 days of the filing of the complaint. (Id. at PageID 140-41.) At the time the Report was issued, Plaintiff had not responded to Defendant's motion, and therefore, the Report recommends dismissing the case without prejudice. (Id. at PageID 141.)

         On April 1, 2019, six days after the Report was issued, Plaintiff's response was received by the clerk's office. (ECF No. 30.) Neither Plaintiff nor Defendants have filed objections to the Report.

         STANDARD OF REVIEW

         Congress enacted 28 U.S.C. § 636 to relieve the burden on the federal judiciary by permitting the assignment of district court duties to magistrate judges. See United States v. Curtis, 237 F.3d 598, 602 (6th Cir. 2001) (citing Gomez v. United States, 490 U.S. 858, 869-70 (1989)); see also Baker v. Peterson, 67 Fed.Appx. 308, 310 (6th Cir. 2003). For dispositive matters, “[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.” See Fed. R. Civ. P. 72(b)(3); 28 U.S.C. §636(b)(1). After reviewing the evidence, the court is free to accept, reject, or modify the magistrate judge's proposed findings or recommendations. 28 U.S.C. § 636(b)(1). The district court is not required to review-under a de novo or any other standard-those aspects of the report and recommendation to which no objection is made. See Thomas v. Arn, 474 U.S. 140, 150 (1985). The district court should adopt the magistrate judge's findings and rulings to which no specific objection is filed. See Id. at 151.

         Objections to any part of a magistrate judge's disposition “must be clear enough to enable the district court to discern those issues that are dispositive and contentious.” Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995); see also Arn, 474 U.S. at 147 (stating that the purpose of the rule is to “focus attention on those issues . . . that are at the heart of the parties' dispute.”). Each objection to the magistrate judge's recommendation should include how the analysis is wrong, why it was wrong, and how de novo review will obtain a different result on that particular issue. See Howard v. Sec'y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).

         A general objection, or one that merely restates the arguments previously presented and addressed by the magistrate judge, does not sufficiently identify alleged errors in the report and recommendation. Id. When an objection reiterates the arguments presented to the magistrate judge, the report and recommendation should be reviewed for clear error. Verdone v. Comm'r of Soc. Sec., No. 16-CV-14178, 2018 WL 1516918, at *2 (E.D. Mich. Mar. 28, 2018) (citing Ramirez v. United States, 898 ...


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