Opinion
C/A No. 0:20-2299-TMC-PJG
03-09-2021
Edrian Donyae Wright, Plaintiff, v. Dr. Kendtz (Psychiatrist); Barber Beede (RN), Defendants.
REPORT AND RECOMMENDATION
Plaintiff Edrian Donyae Wright, a self-represented state prisoner, brings this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff files this action in forma pauperis under 28 U.S.C. § 1915 & § 1915A. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.).
By order dated September 23, 2020, the court authorized the issuance and service of process against the defendants and directed the United States Marshals Service to effect service. (ECF No. 17.) The summons came back unexecuted as to both defendants, with the Forms USM-285 indicating that the South Carolina Department of Corrections ("SCDC") could not find the defendants. (ECF No. 21.) Plaintiff twice filed new Forms USM-285 in attempt to better identify and locate the defendants, and the court reauthorized service and directed the Marshals to effect service with the Forms USM-285 filed by Plaintiff on December 1, 2020 and January 12, 2021. (ECF Nos. 32, 52.) However, the summonses were returned unexecuted by the Marshals, each indicating that the South Carolina Department of Corrections could not find the defendants. (ECF Nos. 39, 58, & 59.)
Plaintiff has appealed the court's December 1, 2020 order reauthorizing service to the United States Court of Appeals for the Fourth Circuit. (ECF No. 47.)
Pursuant to Federal Rule of Civil Procedure 4(m), service of process generally must be effected on a defendant within ninety days of filing the Complaint absent good cause. In this case, over ninety days has passed since the filing of the Complaint and the issuance of the order directing service of process. See Robinson v. Clipse, 602 F.3d 605, 608-09 (4th Cir. 2010) (tolling the time period for service during initial review). Thus, summary dismissal of the unserved defendants is appropriate if the Marshals have made a reasonable effort to obtain the defendants' address. See Greene v. Holloway, No. 99-7380, 2000 WL 296314, at *1 (4th Cir. 2000) (citing with approval Graham v. Satkoski, 51 F.3d 710 (7th Cir. 1995)); see also Shirley v. Staubs, 812 F. App'x 162 (4th Cir. 2020) (providing that, before dismissing for failure to serve, the district court should make findings regarding whether the plaintiff established good cause for their failure to serve, whether the plaintiff (if an inmate) is allowed to obtain the defendant's home address, and whether the Marshals could have served the defendant "with reasonable effort").
Plaintiff provides no argument that he can show good cause to extend the deadline for service, nor has Plaintiff provided any indication that he is impeded from properly identifying and locating the defendants. Plaintiff only provided addresses for the defendants' purported employer—SCDC. The Marshals attempted service at the address provided by Plaintiff, but SCDC indicates that it not aware of the defendants' whereabouts. Plaintiff has not provided the Marshals with any other information that might help identify and locate the defendants. Consequently, the court concludes that the Marshals made a reasonable effort to locate the defendants based on the information provided by Plaintiff.
RECOMMENDATION
Accordingly, the court recommends that this matter be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 4(m) for failure to effect service. March 9, 2021
Columbia, South Carolina
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
Plaintiff's attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).