BROWN v. FLORIDA DEPARTMENT OF HEALTH

Filing 22

ORDER EXTENDING THE DEADLINE FOR SERVING PROCESS re: 21 Request/Demand & 17 Report and Recommendation. (Deadline For Service of Process - by 5/21/2014.) The case is remanded to the magistrate judge for appropriate action on service of process. Signed by JUDGE ROBERT L HINKLE on 4/21/2014. (dc)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

KARL ANDREW BROWN,
Plaintiff,
v.

CASE NO. 4:13cv462-RH/CAS

FLORIDA DEPARTMENT OF HEALTH,
Defendant.
_______________________________/

ORDER EXTENDING THE DEADLINE
FOR SERVING PROCESS
This case is before the court on the magistrate judge’s second report and
recommendation, ECF No. 17, and the objections, ECF No. 21. I have reviewed
de novo the issues raised by the objections.
The recommendation is for dismissal of the case based on the plaintiff’s
failure to serve process by the deadline set out in Federal Rule of Civil Procedure
4(m). The defendant is the Florida Department of Health. The head of the
Department is the Surgeon General. The plaintiff, who is proceeding pro se and in
forma pauperis, says he mailed the summons and a copy of the complaint to the
Surgeon General. But a summons and complaint can be served by mail only with
Case No. 4:13cv462-RH/CAS

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the defendant’s consent. See, e.g., Yates v. Baldwin, 633 F.3d 669, 672 (8th Cir.
2011) (noting that providing a copy of a summons and complaint by mail “is not
the equivalent of ‘delivering’ those documents as required by [Federal] Rule [of
Civil Procedure] 4(j)(2)(A)”). The record does not indicate, and the plaintiff does
not claim, that the defendant consented to service by mail. So service of process
has not been made as required.
Because the plaintiff attempted service based on his misunderstanding of the
law, this order extends the deadline for service. The order remands the case to the
magistrate judge so that service can be effected by the clerk of court, see 28 U.S.C.
§ 1915(d) (stating that in in forma pauperis cases, “The officers of the court shall
issue and serve all process”) (emphasis added), or through the United States
Marshals Service or a designated process server, see Fed. R. Civ. P. 4(c)(3) (“At
the plaintiff’s request, the court may order that service be made by a United States
marshal or deputy marshal or by a person specially appointed by the court” and
“[t]he court must so order if the plaintiff is authorized to proceed in forma
pauperis”), or by other appropriate means, see, e.g., Fla. R. Civ. P. 1.070(i)
(allowing service by mail when the defendant agrees to accept it).
For these reasons,
IT IS ORDERED:

Case No. 4:13cv462-RH/CAS

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The deadline for service of process is extended to May 21, 2014. The case is
remanded to the magistrate judge for appropriate action on service of process.
SO ORDERED on April 21, 2014.
s/Robert L. Hinkle
United States District Judge

Case No. 4:13cv462-RH/CAS