United States District Court, S.D. Ohio, Eastern Division
OPINION AND ORDER
L. Graham United States District Judge
an action brought pursuant to 42 U.S.C. §1983 by
plaintiff, Desean Spraggins, an Ohio state prison inmate.
Plaintiff's complaint was filed on April 5, 2017. On
October 20, 2017, the magistrate judge issued a report and
recommendation on the initial screen of plaintiff's
amended complaint pursuant to 28 U.S.C. §1915A.
See Doc. 17. The magistrate judge recommended that
the claims against all defendants be dismissed, with the
exception of the First Amendment retaliation claims asserted
against Lieutenant Sexton and Officer Showalter in their
individual capacities. After considering objections filed by
plaintiff, the court adopted the report and recommendation by
order filed on November 9, 2017. See Doc. 9.
December 11, 2017, the magistrate judge issued a show cause
order, noting that plaintiff had failed to serve defendants
Sexton and Showalter within the ninety-day period allowed
under Fed.R.Civ.P. 4(m). Doc. 23, p. 1. Plaintiff was ordered
to show cause within twenty-one days of the date of the order
why the court should not dismiss these defendants and why the
court should allow an extension of time to effect service.
Doc. 23, p. 2. The order also stated, “Plaintiff must
support any good cause showing with sworn affidavits.”
Doc. 23, p. 2. A response to the show cause order was due by
January 2, 2018. Plaintiff filed no response to the show
cause order. On January 24, 2018, the magistrate judge filed
a report and recommendation in which she recommended that the
court dismiss Sexton and Showalter as defendants without
prejudice pursuant to Rule 4(m) for failure to timely effect
service of process. Doc. 24, p. 1.
February 6, 2018, plaintiff timely filed an objection to the
report and recommendation. Doc. 25. Plaintiff alleged
generally that his legal mail was mishandled by the prison
mail room. Plaintiff expressed his belief that his mail was
being tampered with due to discrimination against him within
the prison system. Doc. 25, p. 1. He further stated that he
is in restrictive housing and has no access to the legal
library. Doc. 25, pp. 1-2. Plaintiff also noted that he had
“written” a legal document to the court on
October 30, 2017, within the deadline for responding to the
show cause order. Plaintiff also filed a motion on February
6, 2018, requesting that summons and Marshal's Service
forms be sent to him.
party objects within the allotted time to a report and
recommendation, 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); see also
Fed.R.Civ.P. 72(b). Upon review, the Court “may accept,
reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28
objections fail to establish that the magistrate judge erred
in recommending that this action be dismissed for failure to
serve Sexton and Showalter. Even if his objection to the
report and recommendation is construed as a response to the
show cause order, it is not a timely or adequate response.
Plaintiff has provided no explanation as to why he has not
yet served these defendants, nor has he provided the
supporting affidavits required by the show cause order.
attached to his objection a document dated on October 30,
2017, which was filed on November 27, 2017. See Doc.
21. However, this document predated the December 11, 2017,
show cause order, and does not respond to the issue of
conclusory complaints concerning the prison mail room's
mishandling of his mail also do not provide an explanation
for his failure to serve Sexton and Showalter. He does not
allege that he failed to receive the show cause order in time
to respond to it. He does not claim that he mailed summonses
and Marshal's Service forms for serving Sexton and
Showalter which were not delivered due to the actions of mail
earlier filings include complaints about the handling of his
mail. However, most of these documents are unsigned or
concern complaints about the nondelivery of mail to and from
plaintiff's family. The record does not indicate that
plaintiff failed to receive correspondence from this court.
In fact, the record suggests the contrary. Plaintiff timely
responded to the magistrate judge's order on April 6,
2017, which directed him to pay the filing fee or to submit
an application for leave to proceed in forma
pauperis. See Docs. 2 and 3. On August 7, 2017,
plaintiff filed a timely objection to the magistrate
judge's report and recommendation of July 28, 2017.
See Docs. 11 and 12. In this objection, he referred
to the previous orders filed in this case on April 6, 2017,
May 5, 2017, and June 8, 2017, and to the report and
recommendation filed on July 28, 2017. See Doc. 12,
p. 1. Plaintiff filed documents which were construed by this
court as timely objections to the magistrate judge's
October 20, 2017, report and recommendation. See
Docs. 17-19. Plaintiff's objection to the report and
recommendation now before the court was filed within the
specified time period.
relevant to the instant report and recommendation and
plaintiff's motion requesting forms is the April 6, 2017,
notice of deficiency issued by the magistrate judge. This
notice ordered plaintiff to submit the required filing fee or
an application for leave to proceed in forma
pauperis. See Doc. 2. It advised plaintiff that
he was required to submit a completed summons and
Marshal's Service form for each defendant. Doc. 2, p. 2.
It also directed the clerk to send copies of the in forma
pauperis application and service forms to plaintiff.
Doc. 2, p. 2. An internal docket entry dated April 6, 2017,
reflects that a copy of the prisoner IFP form, a summons form
and USM-285 were mailed to plaintiff on that date. Plaintiff
apparently received this correspondence, because on May 3,
2017, he filed a timely motion for leave to proceed in
forma pauperis using the prisoner IFP form. See
Doc. 3. The record also shows that in plaintiff's
November 8, 2017, motion for appointment of counsel, he
included a document entitled “Summons on all agents of
Defendants.” See Doc. 18, p. 8. Although this
document does not refer to Showalter or Sexton, it
demonstrates that plaintiff was aware of the requirement of
submitting summons forms.
fact that plaintiff is in restrictive housing and has no
access to a legal library does not explain his failure to
perfect service. No research of legal issues is required in
order to complete the summons and Marshal's Service
forms. The clerk's office provided plaintiff with the
necessary service forms early in the case. The record
indicates that, despite being in restrictive housing,
plaintiff has regularly submitted filings to the clerk's
office during the pendency of this case. The fact that he is
proceeding pro se does not relieve him of the
responsibility to comply with basic rules of court.
McNeil v. United States, 508 U.S. 106, 113 (1993).
has offered no satisfactory explanation for his failure to
provide summons and Marshal's Service forms for Sexton
and Showalter, nor has he provided good cause for an
extension of time to obtain service. Plaintiff's
objection and his motion to be provided with service forms
are not well taken.
conclusion, the court agrees with the report and
recommendation of the magistrate judge, and hereby adopts the
report and recommendation (Doc. 24). The individual capacity
First Amendment retaliation claims asserted against
Lieutenant Showalter and Officer Sexton are dismissed without
prejudice pursuant to Fed.R.Civ.P. 4(m) for failure to timely
effect service of process. Plaintiff's motion for service
documents (Doc. 26) is denied. ...