Green v. State Of Florida et al
ORDER adopting 95 Report and Recommendation, except as it applies to Capital City Bank and Vorease Jones (claims against all other defendants are dismissed without prejudice); denying 96 Motion for Reconsideration; denying 97 motion for recusal ; denying as moot 138 Motion to Resubmit; denying as moot 140 Motion for Hearing; denying as moot 141 Motion to Enforce Summons; directing defendants Capital City Bank and Vorease Jones to file motions if they wish by 10/28/2013 (plaintiff's responses would be due 11/15/2013); otherwise, the parties should file a case management report by 11/15/2013. Signed by Judge Timothy J. Corrigan on 10/9/2013.(SRW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Case No. 3:12-cv-134-J-32MCR
STATE OF FLORIDA, et al.,
In this case, pro se plaintiff brings claims against 44 different defendants (many of
whom are public officials or institutions) related to an earlier state court criminal proceeding.
After plaintiff’s application to proceed in forma pauperis was denied on the grounds that his
various claims either failed to state a cause of action or were frivolous, he elected to pay the
filing fee to continue the prosecution of this case. Thereafter, despite numerous directions
from the Court, plaintiff has not properly served process on any of the defendants. Thus, the
assigned United States Magistrate Judge issued a Report and Recommendation (Doc. 95),
recommending that plaintiff’s complaint be dismissed for failure to comply with Court Orders
and to prosecute the case pursuant to Fed. R. Civ. P. 41(b) and Local Rule 3.10, Middle
District of Florida. Plaintiff filed a Motion for Reconsideration (Doc. 96), which the Court will
construe as objections to the Report and Recommendation.
Upon independent review of the file, and for the reasons stated in the Report and
Recommendation issued by the Magistrate Judge (Doc. 95), the Court finds the Report and
Recommendation is due to be adopted as the opinion of the Court, except as it applies to
defendants Capital City Bank and Vorease Jones, as discussed below.
As stated in this Court’s previous Orders, plaintiff is responsible for having the
summonses properly served upon each defendant, along with a copy of the Third Amended
Complaint.1 See Orders, Docs. 28, 35, 44, 47. Plaintiff has been advised that sending
“certified letter receipts” does not constitute proper service. See Order, Doc. 47. On March
20, 2013, the Magistrate Judge entered an Order giving plaintiff one final opportunity to
properly serve defendants pursuant to Federal Rule of Civil Procedure 4. See Doc. 82. In
that Order, the Court advised plaintiff that failure to properly serve defendants could result
in the dismissal of this case for failure to prosecute. On March 20, 2013, defendants Capital
City Bank and Vorease Jones filed an answer with defenses but did not contest service of
process. See Doc. 83. On May 16, 2013, plaintiff filed forty (40) “certificates of service,”
each of which is a one page typed document signed by plaintiff stating “I hereby certify that
this is a true and correct copy of the Foregoing that has been furnished by U.S. Mail to Clerk
of Court or Hand Deliver On this 28 day of February 2013 Pursuant to FLA. R.” See Docs.
98-137.2 These “certificates of service” do not constitute proper service of process upon any
of the defendants.
“Any person who is at least 18 years old and not a party may serve a summons and
complaint.” Fed. R. Civ. P. 4(c)(2). “A summons must be served with a copy of the
complaint. The plaintiff is responsible for having the summons and complaint served . . . and
must furnish the necessary copies to the person who makes service.” Fed. R. Civ. P.
A few of the certificates are dated February 26 or March 3 and some omit the “Hand
Deliver” reference. None of those differences are material and none of the certificates reflect
proper service of process.
A defense of insufficiency of process or insufficiency of service of process is waived
if it is not raised by motion or included in a responsive pleading. See Fed. R. Civ. P.
12(h)(1). Thus, even if the service of process was improper, defendants Capital City Bank
and Vorease Jones waived this defense when they filed their answer without raising this
defense. See Vax-D Med. Techs., LLC v. Tex. Spine Med. Ctr., 485 F.3d 593, 597 (11th Cir.
2007). Therefore, this case will proceed as to these defendants.
However, with regard to the remaining defendants, the Court finds plaintiff’s claims
are due to be dismissed. Federal Rule of Civil Procedure 16(f) provides that the Court may
on motion or on its own "issue any just orders, including those authorized by Rule
Rule 37(b)(2)(A)(v) authorizes the Court to dismiss an action or
proceeding in whole or in part. In addition, Federal Rule of Civil Procedure 41(b) authorizes
the Court to dismiss an action where the plaintiff "fails to prosecute or to comply with these
rules or a court order." Here, nearly 18 months after filing suit and despite having twice
received the Court’s Step-by-Step Guide (which explains in detail how to serve process) and
numerous Orders directing plaintiff to demonstrate proper service (see Docs. 28, 35, 47, 82,
90), plaintiff has still failed to properly serve defendants. The Magistrate Judge therefore
recommended that the case be dismissed for failure to demonstrate proper service in
compliance with the Court’s Orders and the Federal Rules of Civil Procedure.
Moreover, as stated in the Magistrate Judge’s Report and Recommendation (Doc.
95), plaintiff’s Third Amended Complaint challenges his convictions in Florida state court.
See Doc. 26. Specifically, it appears plaintiff was convicted of attempted rape, failure to
register as a sex offender, and uttering a forged instrument. Plaintiff asserts that he is
innocent of these charges, that he was deprived of due process of law and wrongfully
imprisoned, and that his prosecution and conviction constitute fraud, malicious prosecution,
a “hate crime,” and reveals a conspiracy against him. To the extent plaintiff attempts to
assert claims of malicious prosecution or violations of his constitutional rights in the criminal
proceedings leading to these convictions, as explained by the Magistrate Judge in his Report
and Recommendation, such claims are barred by Heck v. Humphrey, 512 U.S. 477, 484,
486-87 (1994). Thus, any future efforts to properly serve defendants would be futile because
plaintiff’s claims appear to be barred.3
Accordingly, it is hereby
Plaintiff’s Motion for Reconsideration (Doc. 96) is DENIED and the Report and
Recommendation of the Magistrate Judge (Doc. 95) is ADOPTED as the opinion of the
Court, except as it applies to defendants Capital City Bank and Vorease Jones.
Plaintiff’s case is DISMISSED without prejudice as to all defendants, except
Capital City Bank and Vorease Jones, for failure to comply with the Court’s Orders and to
prosecute the case pursuant to Fed. R. Civ. P. 4(m) and 41(b), and Local Rule 3.10.
Plaintiff’s Motion to Resubmit to Reserve the Right for Amendment and
Compensation to Make Me Whole (Doc. 138), Motion for Hearing (Doc. 140), and Motion to
Enforce Summons (Doc. 141) are denied as moot.
The Court denied plaintiff’s earlier request for court-appointed counsel. See Orders,
Docs. 7, 30, 33. That decision is not a basis to recuse and plaintiff’s motion that the
assigned Magistrate Judge do so is denied (Doc. 97).
As to defendants Capital City Bank and Vorease Jones, their answer (Doc. 83)
to plaintiff’s amended complaint includes the defense that the case fails to state a claim. If
these defendants wish to pursue this defense, they should do so by motion, which should
be filed and served no later than October 28, 2013. Plaintiff may respond no later than
November 15, 2013. If these remaining defendants elect not to file any motion by the
deadline, the parties should confer and file a case management report (the form of which is
available on the Court’s website under the link for “judicial info”) no later than November 15,
DONE AND ORDERED at Jacksonville, Florida this 9th day of October, 2013.
Honorable Monte C. Richardson
United States Magistrate Judge
counsel of record
pro se plaintiff
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