Teal v. Bondi et al

Filing 140

ORDER taking under advisement 94 Garren Richardson's Motion to Quash summons, and ordering Garren Richardson to supplement his Motion by March 28, 2018; denying 114 Defendants Collins and Bondi's Motion to Adopt Pleading; denying [1 20] Defendants Harrell and Land's Motion to Adopt Pleading; granting 124 Shea Tomlinson's Motion to Quash summons; denying 139 Defendant Dela Cerna's Motion to Adopt Pleading; directing Defendants Collins, Bondi, Harrell, Land, and Dela Cerna to file motions to dismiss by March 28, 2018 if they wish to pursue a dismissal of Plaintiff's Complaint; ordering Teal to show cause by March 28, 2018 why Defendant Thomlinson should not be dismissed from this action for failure to locate him after exhausting reasonable efforts to do so; granting Teal's request for an extension of time to respond to Defendants' Motion to Dismiss 100 ; dismissing without prejudice claims against Defendants Williamson and Rivera and di recting the Clerk of Court to terminate Defendants Williamson and Rivera from the docket; directing the Clerk of Court to mail Teal a Civil Rights Complaint Form; discharging the Order to Show Cause 127 . Signed by Judge Marcia Morales Howard on 2/28/2018. (KLC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
DANIEL KEVIN TEAL,
Plaintiff,
v.

Case No. 3:15-cv-1402-J-34JBT

PAMELA JO BONDI, et al.,
Defendants.
______________________________
ORDER
1.

Garren Richardson’s Motion to Quash Summons (Doc. 94; Richardson

Motion) is TAKEN UNDER ADVISEMENT. A Deputy U.S. Marshal completed a return of
service on October 26, 2017, certifying that the Deputy personally served a person named
Garren Richardson at an address provided under seal in the Court’s record (Doc. 77). In
the Richardson Motion, Mr. Richardson, the person served, asserts that he is not the
Garren Richardson named in the Complaint (Doc. 24) in this action. Richardson Motion
at 1-2. Mr. Richardson explains that he was attending high school at the time during which
Plaintiff, Daniel Kevin Teal, alleges defendants violated his constitutional rights.
Richardson Motion at 2. In support, Mr. Richardson attaches an exhibit (Doc. 94-1;
Richardson Exhibit), purportedly to prove he was attending high school and not working
for the correctional facility during the relevant time period. However, the exhibit Mr.
Richardson attaches does not support his contention. See Richardson Exhibit. Rather,
the exhibit he attaches, likely inadvertently, is an inmate grievance appeals records
search result for Daniel Teal. See id. Teal has not filed a response to the Richardson
Motion, despite being ordered to do so. See Order (Doc. 109).

While the Court recognizes that Teal bears the burden of establishing proper
service of process, see 5B Wright and Miller, Federal Practice and Procedure § 1353, the
executed return of service serves as prima facie evidence of proper service, Mfrs.
Hanover Trust Co. v. Ponsoldt, 51 F.3d 938, 941 (11th Cir. 1995). See also Martinez v.
Deutsche Bank Nat’l Tr. Co., No. 5:11-cv-580-Oc-10TBS, 2012 WL 162360, at *2 (M.D.
Fla. Jan. 19, 2012) (“The return of service is prima facie evidence but not conclusive proof
of good service.”). As such, although Teal has not responded to the Motion, Mr.
Richardson’s unsupported assertion is insufficient to overcome the prima facie evidence
of proper service. Nevertheless, as it appears Mr. Richardson may have attached the
wrong document to the Richardson Motion, the Court will give him an opportunity to
supplement the Motion with documentation or evidence supporting his contention. Thus,
by March 28, 2018, Mr. Richardson must file a supplement to his Motion to Quash, which
provides proper documentation supporting his claim that he is not the proper party to this
action. The Court will defer ruling on the Richardson Motion until that time.
2.

Shea Tomlinson’s1 Motion to Quash Summons (Doc. 124; Tomlinson

Motion) is GRANTED. Teal purportedly effected service of process on Defendant
Thomlinson on November 22, 2017. In the Motion, Shea Tomlinson asserts that Teal “has
served the wrong person.” See Tomlinson Motion at 2. She supports the Tomlinson
Motion with a declaration in which she avers she was erroneously served (Doc. 124-1;
Tomlinson Declaration). Teal has not filed a response to the Tomlinson Motion. In the
Tomlinson Declaration, Tomlinson acknowledges that she worked for the correctional

This Defendant’s name is spelled with an “h” (Thomlinson) on the executed return of service and in Teal’s
Complaint. According to the Defendant’s Motion to Quash, her last name is spelled “Tomlinson.” See Doc.
124-1.
1

2

facility during the relevant time period, but explains that she was not working in the
confinement dorm where the alleged incident occurred, stating that only males are
permitted to work in that area. Tomlinson Declaration at ¶ 2. Tomlinson avers that she is
female. Id. She notes that, in his Complaint, Teal describes “Thomlinson” as male,
referring to him throughout with a male pronoun. See Complaint at 13, 16. In addition,
she explains that, during the period described in the Complaint, her name was Cortina,
not Tomlinson. Tomlinson Declaration at ¶ 4. Notably, in a response to this Court’s Order
(Doc. 57) seeking identifying information regarding other defendants, Teal commented
that “these [defendants] are all men.” See Response (Doc. 65) at 1. While Teal was
providing a description of a different defendant when he wrote that comment, he appeared
to be referencing all defendants collectively, and he later mentioned the defendant he
identified in his Complaint as Thomlinson/Richardson,2 saying his “last place of
[e]mployment was Columbia C.I.” See id. at 2. According to the Tomlinson Declaration,
Shea Tomlinson was employed at Hamilton Correctional Institution. See Tomlinson
Declaration at ¶ 1. Given Teal’s statements, the allegations of his Complaint, and Shea
Tomlinson’s sworn, affirmative statements, it appears that Shea Tomlinson, although
served with process, is indeed the incorrect person. As such, the Tomlinson Motion is
GRANTED, and service of process as to Shea Tomlinson is QUASHED.
3.

By March 28, 2018, Teal must SHOW CAUSE why Defendant Thomlinson

(a.k.a. Richardson) should not be dismissed from this action for failure to identify or locate
him after exhausting reasonable efforts to do so. See Orders (Docs. 57, 74).

2

Teal indicated in his Complaint that Tomlinson was formerly known as Richardson.

3

4.

Before the Court are three Notices of Filing and Motions to Adopt Pleading

(Docs. 114, 120, 139; collectively, Motions to Adopt), in which Defendants Collins, Bondi,
Harrell, Land, and Dela Cerna, citing to Rule 10(c) of the Federal Rules of Civil Procedure
(Rule(s)), move to adopt arguments set forth by Defendants Bennett, Wellhausen,
Palmer, Camille, Bowden, Morgan, Allen, Kitchens, King, Jones, and McManus in their
Motion to Dismiss (Doc. 100; Motion to Dismiss). The Motions to Adopt are DENIED. Rule
8(a) and Local Rule 3.01(a), Local Rules of the United States District Court for the Middle
District of Florida (Local Rule(s)), require a movant to file a properly-supported motion
seeking affirmative relief accompanied by a memorandum of applicable legal authority.
Moreover, given the number of defendants and the various claims Teal has raised, the
Court is not convinced by these Defendants’ assertions that “[t]he facts alleged against
these Defendants are consistent with the facts alleged as to the other Defendants,” see
Motions to Adopt (Doc. 120 at ¶ 5; Doc. 114 at ¶ 3; Doc. 139 at ¶ 3), such that they should
not present a proper motion addressing the specific claims and actions attributed to each
of them. Therefore, by March 28, 2018, if these Defendants wish to pursue a dismissal
of Teal’s Complaint, Defendants must file motions to dismiss in which they set forth
substantive grounds for relief as to each Defendant, in compliance with Rule 8(a) and
Local Rule 3.01(a).
5.

On February 9, 2018, Teal filed a document titled “Response to Court’s

Order / Motion to Stay Proceedings / Appointment of Counsel” (Doc. 135; Response to
Order), in response to this Court’s order granting him an extension of time within which
to provide identifying information to effectuate service of process on some defendants
(not those referenced in this Order). See Order (Doc. 129). In the Response to Order,

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Teal reasserts his request to “stay” the proceedings3 and requests appointment of
counsel. Teal contends that he has been subjected to harassment and assaults, and is
too “agitated and stress[ed] out to litigate his [case].” Response to Order at 1. The Court
takes the opportunity to advise Teal that the inclusion of these requests for affirmative
relief in the Response to Order rather than filing a motion is improper. See Rule 7(b)(1).
Moreover, Teal has failed to comply with Local Rule 3.01(a) and (g). As such, his requests
are not properly before the Court. Nevertheless, the Court will briefly address his
concerns, particularly since they suggest a lack of interest in, or ability to, prosecute his
case at this time.
First, if Teal had submitted a proper motion requesting appointment of counsel, it
likely would be denied at this stage of the proceedings. A plaintiff in a civil case does not
have a constitutional right to counsel, and courts have broad discretion in deciding
whether to appoint counsel. Bass v. Perrin, 170 F.3d 1312, 1320 (11th Cir. 1999). A court
should appoint counsel in a civil case only in “exceptional circumstances.” Id. Here, Teal’s
filings suggest that he has the ability to understand and present his own claims, and he
has not shown exceptional circumstances that would warrant the appointment of counsel
at this early stage of the proceedings.
Second, the Court will not stay the proceedings. Teal has filed a lawsuit naming
thirty-two defendants, the Court has expended time and resources to identify and serve
them, and some defendants have responded to the Complaint by filing motions to which

3

Teal filed a Motion to Stay on January 8, 2018 (Doc. 111), which the Court denied as a motion for injunctive
relief. See Order (Doc. 130). Teal also requested the Court stay the proceedings in his response (Doc. 131)
to an Order to Show Cause (Doc. 128). Teal sought a stay pending the Court’s ruling on his motions for
temporary restraining order (Docs. 111, 126; Emergency Motions). At the time of his filing, the Court had
already ruled on the Emergency Motions. See Order (Doc. 130).

5

Teal is obligated to respond.4 Moreover, the Court has a responsibility to timely adjudicate
claims presented to assure justice for plaintiffs and defendants, alike. Teal has not
presented facts or circumstances warranting a stay and thereby depriving the named
Defendants of the opportunity for a timely adjudication of the claims against them.
Although Teal is proceeding pro se, he must follow the Federal Rules of Civil Procedure
in prosecution of this matter including meeting all appropriate deadlines unless he obtains
relief from the Court. See Moon v. Newsome, 863 F.2d 835, 837-38 (11th Cir. 1989). To
the extent Teal’s request to stay the proceedings is a request for additional time within
which to respond to the pending Motion to Dismiss, the Court will GRANT him an
extension within which to do so. Teal must respond to the Defendants’ Motion to Dismiss
(Doc. 100) by March 28, 2018. The Court advises Teal that if he no longer wishes to
litigate this matter, he may file a notice of voluntary dismissal. If he chooses to do so, he
should keep in mind the applicable statute of limitations.
6.

The claims against Defendants Williamson and Rivera are DISMISSED

without prejudice. On January 22, 2018, the Court directed Plaintiff to show cause why
Defendants Williamson5 and Rivera should not be dismissed from this action. See Order
to Show Cause (Doc. 128). In that Order, the Court detailed the reasonable efforts taken
to identify and serve Williamson and Rivera. See id. On February 1, 2018, Teal filed a
response providing similar limited physical descriptions for Williamson and Rivera, but he
provided no additional identifying information to assist in the service of process of these
Defendants (Doc. 131). As to Rivera, Teal states, “or whatever his name is,” and, as to

Teal’s response to the Motion to Dismiss was due on February 20, 2018. See Order (Doc. 129). In addition,
two additional defendants were served on February 8, 2018, with responses due within 60 days of service.
5 Teal later stated that Williamson’s name is actually “Williams” (Doc. 65).
4

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Williamson, Teal notes he “could be wrong” about his name. In consideration of the
foregoing, the Court finds reasonable efforts to locate Defendants Williamson and Rivera
have been exhausted. Therefore, the claims against Defendants Williamson and Rivera
are DISMISSED without prejudice. The Clerk of Court is directed to terminate
Defendants Williamson and Rivera from the docket.
7.

The Clerk of Court is directed to mail Teal a Civil Rights Complaint Form,

per his request (Doc. 135).
8.

The Order to Show Cause (Doc. 127) is DISCHARGED. See Defendant

Dela Cerna’s Response (Doc. 138) and Motion (Doc. 139).
DONE AND ORDERED at Jacksonville, Florida, this 28th day of February, 2018.

Jax-6
c:
Daniel Kevin Teal, #070508
Counsel of Record

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