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Slocum v. Bear

United States District Court, S.D. Ohio, Western Division

May 3, 2019

SGT. S. BEAR, et al., Defendants.

          Barrett, J. Litkovitz, M.J.


          Karen L. Litkovitz United States Magistrate Judge.

         I. Procedural history

         Plaintiff, an inmate currently incarcerated at the Southern Ohio Correctional Facility (SOCF), brings this pro se action under 42 U.S.C. § 1983 alleging violations of his civil rights by defendants Sgt. S. Bear, C/O Crabtree, C/O Cooper, and C/O Lewis in connection with an alleged assault by the officers on October 27, 2017. Plaintiff was granted leave to proceed in forma pauperis and the original complaint was filed on June 19, 2018. (Docs. 2, 3). Service of process was ordered on defendants on June 19, 2018. (Doc. 5). Summonses were returned unexecuted for defendants “CO Crabtree, ” “CO Cooper, ” and “CO Lewis” with a letter from the SOCF Staff Legal Office explaining that the envelopes addressed to these individuals were being returned because SOCF employed multiple persons with the names Crabtree, Cooper and Lewis and the intended recipients were unknown. (Doc. 7). The Court notified plaintiff that it proposed to dismiss this action without prejudice as to these defendants and that plaintiff must either serve a summons and a copy of the complaint on these defendants within 30 days or show cause why service could not be effected within this time period. (Doc. 10). Plaintiff was advised that failure to comply with the terms of the Court's Order would result in a Report and Recommendation to the District Judge that the claims against these individuals be dismissed for lack of service. (Id.).

         Plaintiff filed a response to the Order to show cause on October 18, 2018, seeking an extension of time to complete service. (Doc. 17). Plaintiff asserts that he took several steps to obtain the first names or initials for Crabtree, Cooper and Lewis. Plaintiff states he sent written requests to the Deputy Warden of Operations, the Deputy Warden of Administration, and the Inspector's Office and the Institutional Investigator, both of which allegedly have access to the institution's CT-TV systems and could identify each correction officer present on the date of the incident, all to no avail. Plaintiff also alleges that he requested help from the assigned case manager, who has not cooperated with him. Plaintiff subsequently filed a motion on January 22, 2019, asking the Court to extend the January 25, 2019 deadline for serving defendants Crabtree, Cooper and Lewis until he amended his complaint and discovery began. (Doc. 24). Plaintiff filed a motion to amend the complaint several days later. (Doc. 26).

         The record shows that summons was returned executed for defendant Sgt. Bear on July 23, 2018. (Doc. 8). The certificate of service was signed by an individual other than Sgt. Bear. On September 12, 2018, the Court issued an Order directing plaintiff to move to have default entered against defendant Bear or to show cause why this action should not be dismissed for lack of prosecution. (Doc. 11). Plaintiff was advised that failure to comply with the Order would result in a Report and Recommendation to the District Judge that the action should be dismissed as to defendant Bear.

         On September 24, 2018, counsel for the State of Ohio made an appearance in this matter as an interested party on behalf of defendant Bear. (Doc. 12). The State moved to dismiss this action as it relates to defendant Shannon Bear pursuant to Fed.R.Civ.P. 12(b)(5) for insufficient service of process, or for alternative relief. The State asserts that although the docket reflects that service was executed on July 23, 2018, that is not accurate because defendant Bear took leave from SOCF beginning on July 18, 2018, due to an occupational injury and had not returned to work as of July 23. (Doc. 13 at 6-7). The State contends that service was not properly made on Bear under any of the provisions of Fed.R.Civ.P. 4(e). In the alternative, the State seeks to amend the docket to reflect that service has not been executed on Bear. The State also argues that no relief can to granted to plaintiff unless “a reply has been filed” pursuant to the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(g).[1]

         In response to the State's motion on behalf of defendant Bear, plaintiff argues that defendant Bear was properly served prior to taking medical leave. (Doc. 28). Plaintiff asks the Court to amend the docket sheet to reflect service of process on Bear and to order defendant Bear to reply to the complaint. (Doc. 30).

         Plaintiff also moves the Court to order that service be made on all defendants at the address of the Department of Rehabilitation and Correction. (Doc. 29). Plaintiff alleges that it is impossible for him to serve defendants because SOCF “has established a practice of not accepting certified mail addressed to correctional staff.” (Id. at 1).

         II. Service on defendants

         Rule 12(b)(5) provides that insufficient service of process is a “defense to a claim for relief in any pleading” that may be asserted by motion. Fed.R.Civ.P. 12(b)(5). Proper service of process is required in order for this Court to obtain personal jurisdiction over each defendant. O.J. Distrib., Inc. v. Hornell Brewing Co., Inc., 340 F.3d 345, 353 (6th Cir. 2003). The plaintiff is responsible for having the summons and complaint served upon defendants within the time period allotted by Fed.R.Civ.P. 4(m). Fed.R.Civ.P. 4(c)(1). Rule 4(m) sets forth the Court's obligation when the plaintiff fails to timely complete service of process. The Rule provides, in pertinent part:

If a defendant is not served within 90 days after the complaint is filed, the court--on motion or on its own after notice to the plaintiff--must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. . . .

Fed. R. Civ. P. 4(m). Thus, if the plaintiff does not show good cause justifying his failure to timely serve the complaint, the court shall either (1) dismiss the complaint without prejudice, or (2) direct that service of process be effected within a specified time. Greene v. Venatter, No. 2:13-cv-00345, 2014 WL 559154, *2 (S.D. Ohio February 11, 2014). If the plaintiff shows good cause for failing to comply with the 90-day requirement, the Court shall extend the time for service. Id.

         Where, as here, the plaintiff is a pro se prisoner proceeding in forma pauperis, “the court is obligated to issue plaintiff's process to a United States Marshal who must in turn effectuate service upon the defendants, thereby relieving a plaintiff of the burden to serve process once reasonable steps have been taken to identify for the ...

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