Flemons v. Griswold et al

Filing 59

ORDER adopting in part and declining to adopt in part 27 amended Partial Recommended Disposition; dismissing without prejudice Mr. Flemons' claims against Cavallo; declining to adopt 27 amended Partial Recommended Disposition to the extent i t dismisses Mr. Flemons' claims against the Doe defendants; denying as moot 28 , 45 and 57 motions for extension of time; and referring this matter back to Judge Deere for a ruling on the pending 58 motion for leave to amend. Signed by Judge Kristine G. Baker on 7/16/2018. (ljb)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
AARON FLEMONS
ADC #119749
v.

PLAINTIFF
Case No. 5:17-cv-00204-KGB/BD

LASONYA GRISWOLD, et al.

DEFENDANTS
ORDER

The Court has received the Partial Recommended Disposition submitted by United States
Magistrate Judge Beth Deere (Dkt. No. 27). The Partial Recommended Disposition recommends
that the claims against the Doe defendants, Lindsey Wingfield,1 and defendant Cavallo be
dismissed without prejudice (Id., at 3). Plaintiff Aaron. Flemons filed objections to the Partial
Recommended Disposition (Dkt. No. 31).

Judge Deere subsequently amended the Partial

Recommended Disposition to remove the recommendation that Ms. Wingfield be dismissed from
this action (Dkt. No. 50). Mr. Flemons has filed three motions for extension of time seeking
additional time to serve the Doe defendants and defendant Cavallo (Dkt. Nos. 28, 45, 57). On July
11, 2018, Mr. Flemons filed a motion for leave to amend complaint (Dkt. No. 58). For the reasons
discussed below, the Court adopts in part and declines to adopt in part the amended Partial
Recommended Disposition.
Mr. Flemons filed this action on August 7, 2017, pursuant to 42 U.S.C. § 1983, alleging
that defendants violated his constitutional rights during his incarceration at the “East Area
Regional Max unit” in Marianna, Arkansas (Dkt. No. 33, at 1).2 On August 11, 2017, Judge Deere
ordered Mr. Flemons to identify the Doe defendants so that they could be served within the 90Ms. Wingfield was originally named as “Whitfield.”
Mr. Flemons filed an amended complaint on February 7, 2018, and a supplemental
complaint on May 7, 2018 (Dkt. Nos. 33, 46).
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day period allowed by Rule 4(m) of the Federal Rules of Civil Procedure (Dkt. No. 3). Mr.
Flemons has identified the Doe defendants in his latest motion for leave to amend complaint (Dkt.
No. 58).
Further, the summons for separate defendant Cavallo issued by this Court was twice
returned unexecuted (Dkt. Nos. 13, 25). Judge Deere directed Mr. Flemons to use the discovery
process to determine defendant Cavallo’s service address (Dkt. No. 26). Mr. Flemons has failed
to provide a service address for defendant Cavallo, and the time for serving defendant Cavallo has
passed.
Mr. Flemons argues that he has already provided defendant Cavallo’s service address to
the Court under seal (Dkt. No. 31, at 1). Per Rule 4(m), “[i]f a defendant is not served within 90
days after the complaint is filed, the court—on motion or on its own notice to the plaintiff—must
dismiss the action without prejudice against that defendant or order that service be made within a
specified time.” Fed. R. Civ. P. 4(m). The Court notes that the summons issued to defendant
Cavallo at the address under seal was returned unexecuted (Dkt. No. 25). The Court also notes
that Mr. Flemons has not yet provided an additional or different service address for defendant
Cavallo. Accordingly, the Court finds that Mr. Flemons has failed to serve defendant Cavallo
within the 90-day limit set forth in Federal Rule of Civil Procedure 4(m). See Carmona v. Ross,
376 F.3d 829, 830 (8th Cir. 2004) (affirming the district court’s dismissal of defendants named in
original complaint who were not served within required time, but reversing dismissal of defendants
named for the first time in an amended complaint, as plaintiff was entitled to additional time to
serve those defendants).
After a review of the Partial Recommended Disposition, the Order amending the Partial
Recommended Disposition, and Mr. Flemons’ objections, as well as a de novo review of the

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record, the Court adopts the amended Partial Recommended Disposition to the extent it dismisses
Mr. Flemons’ claims against defendant Cavallo (Dkt. No. 27). The Court therefore dismisses
without prejudice Mr. Flemons’ claims against defendant Cavallo. As Mr. Flemons has recently
identified the Doe defendants, the Court declines to adopt the amended Partial Recommended
Disposition to the extent it dismisses Mr. Flemons’ claims against the Doe defendants (Id.). The
Court denies as moot Mr. Flemons’ motions for extension of time (Dkt. Nos. 28, 45, 57). Finally,
the Court refers this matter back to Judge Deere for a ruling on the pending motion for leave to
amend (Dkt. No. 58).
It is so ordered this 16th day of July, 2018.
__________________________________
Kristine G. Baker
United States District Judge

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