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Easterling v. Trump

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

August 5, 2019

WARREN EASTERLING, Plaintiff,
v.
DONALD TRUMP, et al., Defendants.

          MEMORANDUM OF OPINION

          DONALD C. NUGENT, UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court upon the Report and Recommendation of Magistrate Judge Michael R. Merz. Although the Court notified Plaintiff nine separate times that he failed to perfect service on the Defendants (ECF Nos. 12, 19, 23, 25, 27, 29, 31, 33, and 38), Plaintiff failed to correct the deficiencies. The Report and Recommendation (ECF No. 40), submitted on July 16, 2019, is hereby ADOPTED by this Court. As such, Plaintiffs Complaint (ECF No.1) is DISMISSED.

         Procedural and Factual Background

         This case was filed on April 16, 2019 against President Donald Trump and eight Judges of the United States District Court for the Southern District of Ohio. After Plaintiff submitted three returned summonses as proof of service, United States District Court Magistrate Judge Michael R. Merz issued his first Order expressing concern that the summonses did not evidence proper service on the Defendants. Specifically, Magistrate Judge Merz listed three deficiencies:

1. The Plaintiff listed himself as the person making service. Rule 4 requires service to be made by someone who is not a party to the case.
2. The Federal Civil Procedure Rules do not provide for service by certified mail. They do, however, incorporate the rules from the forum State, in this case Ohio. Ohio Civil Procedure Rule 4.2 provides for service by certified mail but only if it is done by the Clerk of Court. The Clerk's office did not send the certified mail.
3. Under the Ohio Rules, if certified mail is refused, the Plaintiff may request that the Clerk's Office serve the Complaint by regular mail and must prepare for the Clerk's signature a certificate of mailing. That was not done in this case.

(ECF No. 19). He ordered Plaintiff to file a proper proof of service that addresses these concerns.

         Plaintiff filed other documents with the Court but did not comply with the Court's Order to file proof of service. On May 21, 2019, the Court issued a Renewed Order to File Proof of Service. (ECF No. 23). Plaintiff responded to this Order by stating, "there is absolutely no reasonable basis for any doubt regarding service being perfected in accordance with Rule 4, except for the magistrate wanting to fabricate a basis for a fraudulent dismissal." (ECF No. 24). He asserted that he had attached a copy of the signed green cards from the United States Postal Service which he previously filed with the Clerk's Office and that these cards were proof of service. (ECF No. 24).

         The Court addressed Plaintiffs response, rejecting his explanation and stated:

1. Plaintiff did not attach copies of the green cards to his Response as he indicated.
2. Rule 4(1)(1) provides that proof of service must be made by the server's affidavit No. affidavit was provided. Returned summonses suggest Plaintiff performed service. A party to an action cannot personally carry out service.
3. The green cards, alone, do not prove service was done properly. In this case, service by certified mail will only be effective if it is done by the Clerk of Court. The Deputy Court Clerks confirm that they have not been asked to perform service, they have not been provided documents or envelopes for service and have not attempted service of process by certified mail in this case.

(ECF No. 25). The Court notified Plaintiff that the former Order remained in effect. Plaintiff responded to that Order by stating that he was unable to prove he provided envelopes to the Clerk's Office because the envelopes were mailed, and the Magistrate Judge's suspicion was immaterial as the green cards were proof of service. (ECF No. 26).

         The Magistrate Judge issued a Decision in reply to Plaintiffs Second ...


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