STONE v. HUMPHRIES

Filing 10

ORDER re 1 Complaint filed by FRANCIS STONE: Plaintiff's request to order USMS to perform service of process upon Defendants is GRANTED. Clerk directed to refer summonses, complaint and this order to USMS for service. Def endants have 60 days to file a response to complaint. Clerk to forward a form for consenting to trial by Magistrate Judge to Plaintiff. (Notify Chambers on 4/13/2012.). Signed by MAGISTRATE JUDGE GARY R JONES on 2/8/2012. (Forwarded summonses, complaint and order to USMS. Consent form sent to Plaintiff.) (jws)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
FRANCIS STONE,
Plaintiff,
v.

CASE NO. 1:11-cv-204-MP-GRJ

MARTHA HUMPHRIES, et al.,
Defendants.
_____________________________/
ORDER
Pending before the Court is doc. 9, Plaintiff’s Response To Order To Show
Cause. Plaintiff advises that he forwarded to the Clerk on December 7, 2011 the
summons and notice of lawsuit and request for waiver of service of summons, which is
within the time required for service of process. Plaintiff further asserts that he has been
granted permission to proceed in forma pauperis and therefore the United States
Marshal is required to serve process.
Plaintiff is mistaken that he has been granted permission to proceed in forma
pauperis. The Plaintiff paid the filing fee of $350.00 on October 7, 2011. The Plaintiff
has never requested permission to proceed in forma pauperis nor has the Court
granted the Plaintiff permission to proceed in forma pauperis.
Rule 4(c)(3) of the Federal Rules of Civil Procedure provides in relevant part
that:
At the plaintiff’s request, the court may order that service be made by a United
States marshal or deputy marshal ... [T]he court must so order if the plaintiff is
authorized to proceed in forma pauperis under 28 U.S.C. § 1915 ...
The Rule thus mandates that the Court order the United States marshal to serve

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process only if the plaintiff is authorized to proceed in forma pauperis. Where, as here,
the plaintiff has not been authorized to proceed in forma pauperis, the court may do so
if the plaintiff makes a request.
Plaintiff appears to have made an effort to serve the summons and complaint but
has not done so because he incorrectly believed that the Marshal was serving process
in this case. Although the Court’s prior order was clear, doc. 6, the Court will construe
Plaintiff’s response as a request pursuant to Fed. R. Civ. P. 4(c)(3) to order the United
States Marshal to serve the summons and complaint. The Court will grant this request
and direct the United States Marshal to serve the summons and complaint in order to
move this case forward.
Accordingly, it is ORDERED:
1.

Plaintiff’s request to order the United States Marshal to perform service of
process upon the Defendants pursuant to Fed. R. Civ. P. 4(c)(3) is
GRANTED.

2.

The Clerk shall print five copies of the Complaint and shall refer the
prepared summonses to the United States Marshal, along with the copies
of Plaintiff's Complaint (Doc. 1) and this Order.

3.

Pursuant to Rule 4(c), Federal Rules of Civil Procedure, Jean Lewis is
specially appointed to serve process upon Defendants Martha
Humphries, Rodney Tomlinson, Brandy Dewey, and M. Roberts at
Mayo Correctional Institution, a facility within the Florida Department of
Corrections. In the absence of Jean Lewis, the specially appointed
process server designated above, Carolyn (Nickey) Taylor is designated
as an alternate server and shall comply with this Order as though issued in
her name. Debra Hix is specially appointed to serve process upon
Defendant Kenneth Tucker at the Central Office of the Florida
Department of Corrections, 501 South Calhoun Street, Tallahassee,
Florida, 32399-2500. In the absence of Debra Hix, Susan Torbert is
designated as an alternate server to serve process upon Defendant

Case No: 1:11-cv-204-MP-GRJ

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Kenneth Tucker and shall comply with this Order as though issued in her
name.
4.

Within 10 days from the date of entry of this Order on the docket, the
United States Marshal or a Deputy United States Marshal shall serve a
copy of the Complaint, a summons, and this Order upon the Defendants.
Service shall be accomplished by mailing these documents by regular
mail to the above named special process servers who shall serve the
Complaint. All costs of service shall be advanced by the United States.

5.

Within 10 days after receipt of the complaint and this order, Jean Lewis
and Debra Hix shall serve the Complaint upon the individuals named
above, complete and sign the return of service, and return it to the Clerk
of Court as proof of service. Defendants shall also sign the return of
service as an acknowledgment of receipt of service.

6.

If the Defendants are no longer employed at the designated institution or
facility, or are otherwise unable to be served, the server shall report this
information to the Clerk of Court within 10 days after receipt of the
complaint and this Order. If service is returned unexecuted, or if a
return is not filed within twenty (20) days from the date of this order,
the Clerk of Court shall immediately notify Chambers.

7.

Defendants shall have 60 days after service in which to file a response to
the Complaint.

8.

No motion for summary judgment shall be filed by any party prior to entry
of an Initial Scheduling Order without permission of the Court.

9.

Counsel for Defendants shall file a notice of appearance within 10 days of
the date of service.

10.

Plaintiff is advised that after a response to the Complaint has been filed,
no further amendments to the Complaint shall be permitted by the Court
unless, as required by Rule 15 of the Federal Rules of Civil Procedure,
Plaintiff files a separate motion for leave to so amend and provides a copy
of the proposed amended complaint. N.D. Fla. Loc. R. 15.1.

11.

In accordance with 28 U.S.C. § 636(c)(2), the Clerk shall forward to
Plaintiff a form for consenting to trial by the Magistrate Judge, with the
case number written on it. If Plaintiff wishes to consent, the form should be
signed and forwarded to counsel for Defendants. If the Defendants wish to
consent, the form should be signed and returned to the Clerk.

Case No: 1:11-cv-204-MP-GRJ

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12.

After a notice of appearance has been filed, Plaintiff shall be required to
mail to the attorney for the Defendants a copy of every pleading or other
paper, including letters, submitted for consideration by the Court. Plaintiff
shall include with each pleading, motion, or other paper to be filed with the
Clerk of the Court a certificate stating the date an identical copy of the
paper was mailed to the attorney representing the Defendants. Any paper
so submitted for filing that does not contain a "certificate of service" shall
be returned by the Clerk and disregarded by the Court.

13.

Plaintiff is reminded to keep the Clerk of Court advised of any change in
his mailing address should he be transferred, released from prison, or
otherwise be relocated. Failure to do so may result in the dismissal of
Plaintiff's action for failure to prosecute should court orders not be able to
reach Plaintiff.

14.

The Clerk of Court shall return this file to the undersigned no later than
April 13, 2012.

DONE AND ORDERED this 8th day of February, 2012.

s/Gary R. Jones
GARY R. JONES
United States Magistrate Judge

Case No: 1:11-cv-204-MP-GRJ