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Dwight Freeman v. Director Terry Collins

October 17, 2011


The opinion of the court was delivered by: Judge George C. Smith

Magistrate Judge E.A. Preston Deavers


This matter comes before the Court for consideration of the August 15, 2011 Report and Recommendation of the Magistrate Judge. (ECF No. 101.) In her Report and Recommendation, the Magistrate Judge recommended that the Court dismiss Defendant Dr. Martin Sevrey without prejudice pursuant to Federal Rule of Civil Procedure 4(m). On August 29, 2011, Plaintiff objected to the Report and Recommendation. (ECF No. 102.) Plaintiff contends that good cause exists for failure to serve Dr. Sevrey and that the circumstances weigh in favor of an extension of service time. The matter is now fully briefed. Upon review, Plaintiff's Objections are OVERRULED and the Report and Recommendation is ADOPTED. The State of Ohio's Motion to Dismiss (ECF No. 89) is GRANTED and Plaintiff's Motion for an Extension of time to Effect Service (ECF No. 95) is DENIED.*fn1 The State of Ohio's Motion to Strike (ECF No. 106) is DENIED as moot in light of this Opinion and Order.


On February 2, 2008, the Court permitted Plaintiff to proceed in forma pauperis on his claim under 42 U.S.C. § 1983 against Dr. Sevrey. The U.S. Marshal attempted service via certified mail at a Southern Ohio Correctional Facility ("SOCF") address, which Plaintiff provided. Service was returned unexecuted on March 25, 2008 because Dr. Sevrey no longer worked at SOCF. The Clerk's office initially docketed the return of service as executed. On July 21, 2008 the Clerk corrected the docket to reflect that service on Dr. Sevrey was unexecuted.

Plaintiff served discovery requests on counsel for Defendants Lt. Kaut and C.O. Haynes on June 9, 2008. Within these requests, Plaintiff sought information concerning the whereabouts of Dr. Sevrey. Although Plaintiff indicated to the Magistrate Judge that Defendants did not respond to these requests, he attached Defendants' July 8, 2008 Responses to his Objections. (See Resp. Disc., ECF No. 102-1.) Defendants indicate in the Responses indicate that Defendant Sevrey had not been served ans was not a party, he no longer worked for SOCF, he did not leave a forwarding address, and that the remaining Defendants are unaware of information as to Dr. Sevrey's subsequent employment.*fn2 (See Resp. Disc. ¶ 5, ECF No. 102-1.)

Plaintiff moved for default judgment against Dr. Sevrey on July 11, 2008 and again on March 2, 2009. The Court denied both of these motions. Importantly, on two separate occasions, in February and April of 2009, the Court explicitly informed Plaintiff that Dr. Sevrey was never served with the Complaint. (See ECF Nos. 48, 53.)

In his Reply in Support of his Objections, Plaintiff attached a second new document not before the Magistrate Judge. (See ECF No. 107-1.) This document, which Plaintiff apparently created in July 2009, is labeled as a Motion/Discovery Request and seeks the last known address of Dr. Sevrey from the other remaining Defendants. It requests that Defendants provide this information to the U.S. Marshal for completion of service. Within the document, Plaintiff certifies that he served the document on Defendants Kaut and Haynes' former attorney on July 26, 2009. Plaintiff maintains that the state never responded. Current counsel for the State of Ohio, as well as Defendants Kaut and Haynes, maintains that this document is not within the government's records. Plaintiff never filed this document with the Court nor did he seek to compel a response from Defendants.

In June 2010, the Court appointed counsel for Plaintiff. The Magistrate Judge held a status conference and set forth a case schedule on July 26, 2010. Within the Magistrate Judge's April 12, 2011 Opinion and Order,*fn3 she scheduled a status conference to address the lack of service on Dr. Sevrey. On April 21, 2011, the State of Ohio moved to dismiss Dr. Sevrey pursuant to Federal Rule of Civil Procedure 4(m). On May 16, 2011, in conjunction with his opposition to the Motion to Dismiss, Plaintiff, for the first time, requested an extension of time to effect service on Dr. Sevrey.


If a party objects within the allotted time to a report and recommendation, "[a] judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.


The State of Ohio has moved for dismissal pursuant to Federal Rule of Civil Procedure 4(m). Rule 4(m) provides a plaintiff with 120 days from the filing of a complaint to serve a defendant. Fed. R. Civ. P. 4(m). If a plaintiff who fails to complete service within this time makes a showing of good cause, Rule 4(m) requires an extension of service time. Id. If good cause is lacking, the Court may dismiss the action without prejudice or, in its discretion, "order that service be made within a specified time." Id.

In this case, the Magistrate Judge recommended dismissal pursuant to Rule 4(m). She found good cause lacking because, although Plaintiff was proceeding in forma pauperis, he was inactive for a significant period of time despite knowledge that Dr. Sevrey was not served. Additionally, the Magistrate Judge found a discretionary extension of time for service inappropriate. In reaching this determination, the Magistrate Judge emphasized that at this point any extension would be significant in length and would prejudice Defendants by causing further delay to this already long-pending action. Plaintiff ...

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