MCIVER v. HUMPHREY et al

Filing 38

ORDER ADOPTING 37 Report and Recommendations and GRANTING 33 Motion for Entry of Judgment under Rule 54(b). Officer Johns is dismissed without prejudice for failure to effect timely service. Ordered by Judge Marc Thomas Treadwell on 6/10/2013. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
BENJAMIN MCIVER,
Plaintiff,
v.
CARL HUMPHREY, et al.,
Defendants.

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CIVIL ACTION NO. 5:12-CV-156 (MTT)

ORDER
Before the Court is the Recommendation of Magistrate Judge Charles H. Weigle.
(Doc. 37). The Magistrate Judge recommends granting Defendant Humphrey’s Motion
for Final Judgment (Doc. 33) pursuant to Fed. R. Civ. P. 54(b) and dismissing
Defendant Officer William Johns for failure to effect timely service pursuant to Fed. R.
Civ. P. 4(m). The Plaintiff has not filed an objection to the Recommendation.
As to Humphrey’s Motion for Final Judgment, the Magistrate Judge’s
Recommendation is Adopted and made the Order of the Court. This Court dismissed
all claims against Humphrey by a January 31, 2013, Order (Doc. 31) that effectively was
both “final” and a “judgment.” See Lloyd Noland Foundation, Inc. v. Tenet Health Care
Corp., 483 F.3d 773, 777 (11th Cir. 2007). Further, the Court finds no “just reason for
delay” in certifying that Order as a final judgment. Id.
The Magistrate Judge’s Recommendation that Officer Johns be dismissed for
failure to effect timely service is also Adopted and made the Order of the Court. The
Court further emphasizes that its dismissal for failure to serve is not based on any fault

of the Plaintiff. Rather, it is based on the fact that the Court has made reasonable
efforts1 on the Plaintiff’s behalf to serve Officer Johns and has been unsuccessful.
There is nothing more the Court can reasonably do to effectuate service. See
Richardson v. Johnson, 598 F.3d 734, 740 (11th Cir. 2010) (noting that a good cause
extension of time is available to unrepresented prison litigants “as long as the courtappointed agent can locate the prison-guard defendant with reasonable
effort”)(emphasis added).
Accordingly, Humphrey’s Motion for Final Judgment (Doc. 33) is GRANTED, and
Officer Johns is dismissed without prejudice for failure to effect timely service.
SO ORDERED, this 10th day of June, 2013.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

1
This includes an attempt by the U.S. Marshals to personally serve Officer Johns at his last
known home address, where the occupant stated she did not know Johns, had lived there for
more than a year, and had not received any mail for Johns in that time. (Doc. 36).
2