United States District Court, S.D. Ohio, Western Division
Barrett, J. Litkovitz, M.J.
ORDER AND REPORT AND RECOMMENDATION
L. Litkovitz United States Magistrate Judge.
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
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).
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.
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. §
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).
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
Service on defendants
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.
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 ...