United States District Court, M.D. Tennessee, Nashville Division
OCTAVIAN D. REEVES
CORRECTIONS CORPORATION OF AMERICA, et al.
HONORABLE ALETA A. TRAUGER, DISTRICT JUDGE
REPORT AND RECOMMENDATION
BARBARA D. HOLMES UNITED STATES MAGISTRATE JUDGE
Order May 15, 2018 (Docket Entry No. 11), the District Judge
referred this pro se and in forma pauperis
prisoner civil rights action to the Magistrate Judge for
pretrial proceedings under 28 U.S.C. §§
636(b)(1)(A) and (B), Rule 72(b) of the Federal Rules of
Civil Procedure, and the Local Rules of Court.
D. Reeves (“Plaintiff”) is an inmate of the
Tennessee Department of Correction (“TDOC”). On
January 8, 2018, he filed this lawsuit. See
Complaint (Docket Entry No. 1). Plaintiff seeks relief under
42 U.S.C. § 1983 for violations of his federal
constitutional rights alleged to have occurred at the
Trousdale Turner Correctional Center (“TTCC”) in
Hartsville, Tennessee during 2016 and 2017. Id. at
4-5. In the order of referral, the Court found that Plaintiff
alleged colorable constitutional claims against two
defendants - Cynthia Pratt and Nurse f/n/u Scott - based on
allegations that he was denied adequate medical care. All
other claims and defendants were dismissed.
of process for Defendant Pratt was returned unexecuted with a
notation that she is not an employee of the TTCC but works
for Correct Care Solutions. See Docket Entry No. 14.
Plaintiff did not return a service packet for Nurse f/n/u
Scott, but instead returned a completed service packet for
Scott Schuch (“Schuch”), an individual who was
not named as a defendant in his original complaint.
See Docket Entry No. 12. Plaintiff subsequently
filed an amended complaint on October 16, 2018, asserting
claims against Schuch and three other individuals who were
also not named in his original complaint - Joseph Schweiter,
Nurse f/n/u Taylor, and Nurse f/n/u Dotts -, see
Amended Complaint (Docket Entry No. 13), but he failed to
submit service packets for these new Defendants.
of the length of time that had passed with no activity in the
case and because of the absence of any Defendant who had been
served with process, the Court sua sponte directed
the Clerk to send to Plaintiff six new service packets, four
for the newly added Defendants and two for Defendants Pratt
and Scott. See Order entered March 7, 2019 (Docket
Entry No. 15). Plaintiff was directed to complete service
packets and return them to the Clerk's Office within 21
days so that process could issue. Plaintiff was specifically
process cannot be executed upon a defendant unless he
provides a correct address for the defendant. In the event
that process is not served upon a defendant within 90 days,
Rule 4(m) requires that the defendant be dismissed in the
absence of a showing of good cause for the failure to have
the defendant served with process.
Id. at 2. Although Plaintiff returned completed
service packets as instructed, service of process was
returned unexecuted for all Defendants other than Defendant
Schuch. See Docket Entry Nos. 22-27. Defendant
Schuch responded to the lawsuit by filing an answer (Docket
Entry No. 21) on April 8, 2019, and a scheduling order was
entered, setting out deadlines for pretrial activity.
See Docket Entry No. 28.
Order entered August 8, 2019, the Court sua sponte
advised Plaintiff that the remaining five Defendants had not
been served and that the summonses for them were returned
unexecuted and undeliverable as addressed. See
Docket Entry No. 29. Plaintiff was advised that these
Defendants would be subject to dismissal under Rule 4(m) of
the Federal Rules of Civil Procedure because of the lack of
timely service of process and that a recommendation for their
dismissal would be entered unless, no later than August 30,
2019, he either provided new addresses for them or showed
good cause for why they had not been served with process.
September 19, 2019, Plaintiff filed an untimely response to
the August 8, 2019, Order. See Docket Entry No. 30.
In what is styled as a motion for an extension of time,
Plaintiff acknowledges that he is unable to locate several of
the Defendants and seeks an extension of time to complete a
“brief, ” but he does not provide new addresses
for Defendants or show good cause for why they have not yet
4(m) of the Federal Rules of Civil Procedure requires that a
defendant be served with process within 90 days of the date
the action is filed and provides that, in the absence of a
showing of good cause by Plaintiff for why service has not
been timely made, the Court "must dismiss" the
action without prejudice. A plaintiff bears the burden under
Rule 4(m) to establish “good cause” if process is
not served within 90 days of filing the complaint. See
Nafzinger v. McDermott Int'l, Inc., 467 F.3d 514,
521 (6th Cir. 2006). To establish “good cause”
under Rule 4(m), plaintiff must show “excusable
neglect.” Id. at 521-23. See also Turner
v. City of Taylor, 412 F.3d 629, 649-50 (6th Cir. 2005)
(applying excusable neglect standard to “good
cause” analysis under Rule 4(m)).
Court recognizes the unique difficulties faced by
incarcerated pro se plaintiffs in litigating their
cases. However, in this case, Plaintiff has failed to show
good cause to excuse his failure to serve any of the five
remaining Defendants for whom process has not yet been
executed. The two originally named Defendants have not been
served with process in the approximately 17 months since
process was initially directed to issue in this case. With
respect to the four Defendants added by Plaintiff's
amended complaint, only one has been served even though the
amended complaint was filed approximately one year ago.
Further, it has been approximately seven months since the
Court, by the Order entered March 7, 2019, sua
sponte addressed the lack of service on Defendants and
specifically advised Plaintiff of the need to ensure that all
Defendants in this action are served within 90 days in
accordance with Rule 4(m). Finally, Plaintiff's recent
filing fails to provide any explanation for his failure to
timely serve Defendants and fails to outline any steps he has
taken to try to locate them or find new addresses for them.
The unfortunate reality faced by all plaintiffs, not just
pro se plaintiffs, is that they are sometimes unable
to locate and serve defendants and the dictates of Rule 4(m)
come into play.
reasons set out above, the undersigned Magistrate Judge
respectfully RECOMMENDS that Defendants Cynthia Pratt, Nurse
f/n/u Scott, Joseph Schweiter, Nurse f/n/u Taylor, and Nurse
f/n/u Dotts be DISMISSED WITHOUT PREJUDICE ...