Winberly Jr. v. Broome et al
REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DENY Defendant Ferra's 49 MOTION to Dismiss. The Court ORDERS any party seeking to object to this Report and Recommendation to file specific written objection within fourteen (1 4) days of the date on which this Report and Recommendation is entered (Objections to R&R due by 1/23/2017). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 1/9/2017. (ca)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
LEONARD WIMBERLY, JR.,
CIVIL ACTION NO. 6:15-cv-23
DEAN BROOME; NURSE GAIL FERRA;
and NURSE MARTHA MIDDLETON,
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This matter comes before the Court on Defendant Gail Ferra’s Motion to Dismiss,
(doc. 49), Plaintiff’s Motion to Appoint Counsel, (doc. 41), and Motion to Introduce Witnesses,
(doc. 42). For the following reasons, I RECOMMEND that the Court DENY Defendant Ferra’s
Motion to Dismiss. Additionally, the Court DENIES Plaintiff’s Motion to Appoint Counsel and
Motion to Introduce Witnesses. The Court also sets forth deadlines which shall govern this case
which the parties are urged to read and follow.
Plaintiff filed this action against Defendants Dean Broome, Gail Ferra, and Martha
Middleton on March 4, 2015. (Doc. 1.) Defendant Broome is the Director of the Medical
Department at Georgia State Prison (“GSP”), where Plaintiff is incarcerated, and Defendants
Ferra and Middleton were nurses at the prison. (Id. at p. 4.) In his original Complaint, Plaintiff
alleged that Defendants denied him access to necessary medical care. Specifically, Plaintiff
alleged that he notified all three Defendants beginning in November of 2013 that he has
unbearable pain in his right leg, hip, and thigh area, and Defendants denied him necessary
medical care for this serious condition. (Id. at p. 5.)
On September 4, 2015, with permission of the Court, Plaintiff amended his Complaint.
(Doc. 9.) Plaintiff reiterated his allegations that Defendants ignored his leg and hip condition
despite direct knowledge of his unbearable pain. The Court conducted a frivolity review of
Plaintiff’s Complaint on December 9, 2015. (Doc. 12.) Therein, the Court found that Plaintiff’s
Complaint, as amended, stated a claim for relief that Defendants were deliberately indifferent to
Plaintiff’s serious medical needs. (Id. at pp. 5–6.) Thus, the Court ordered that the United States
Marshal serve Plaintiff’s Complaint and Amended Complaint on Defendants. (Doc. 11.)
On February 9, 2016, the Court granted Defendant Broome’s Motion to Stay due to
Broome having moved to dismiss Plaintiff’s Complaint. (Doc. 19.) Therein, the Court ruled that
“all proceedings, including discovery are stayed.” (Id. at p. 2.) Subsequently, Plaintiff filed a
Second Amended Complaint, (doc. 22), which Defendants Broome and Middleton also moved to
dismiss, (doc. 23). Ultimately, the Court denied Defendants Broome and Middleton’s Motion to
Dismiss on July 18, 2016. (Doc. 34.) However, the Court did not enter a scheduling notice or
otherwise affirmatively indicate that the stay in the case was lifted. In the interim, Plaintiff filed
a number of pleadings including a Motion to Appoint Counsel and a Motion to Introduce
Throughout this period, Defendant Ferra was not served with Plaintiff’s Complaint and
Amendments. The Marshals Service returned service as to Defendant Ferra on July 13, 2016,
(doc. 33), but the Notice indicates that the Marshals Service only mailed the Complaint to GSP
and that someone at GSP notified the Marshals Service that Defendant Ferra no longer worked
there. (Id.) 1 Accordingly, on December 6, 2016, the Court ordered that the United States
Marshal make reasonable efforts to locate Defendant Nurse Gail Ferra and to personally serve
her with this action. (Doc. 44.) In that Order, the Court held that “Plaintiff has not entirely
ignored his obligation to provide a current address where Defendant Ferra may be served.” (Id.
at p. 3.) Importantly, the Court found “good cause to extend the time period for service to
December 31, 2016.” (Id. at p. 3 (citing Fed. R. Civ. P. 4(m)).)
The United States Marshal Service personally served Defendant Ferra with this action on
December 9, 2016. (Doc. 45.) Defendant Ferra, through counsel, answered the Complaint, as
amended, (doc. 48), and filed the instant Motion to Dismiss, (doc. 49), on December 29, 2016.
Defendant Ferra’s Motion to Dismiss (Doc. 49)
A. Motion to Dismiss for Untimely Service
Plaintiff’s obligation to timely serve the Complaint is governed by Federal Rule of Civil
Procedure 4(m), which, at the time that Plaintiff filed this action, provided,
If a defendant is not served within 120 days after the complaint is filed, the
court—on motion or on its own after notice to the plaintiff—must dismiss the
action without prejudice against that defendant or order that service be made
within a specified time. But if the plaintiff shows good cause for the failure, the
court must extend the time for service for an appropriate period. 2
Good cause for failure to timely serve “exists only when some outside factor, such as reliance on
faulty advice, rather than inadvertence or negligence, prevented service.” Lepone-Dempsey v.
Carroll Cty. Comm’rs, 476 F.3d 1277, 1281 (11th Cir. 2007) (alterations omitted) (quoting
A similar return was filed as to Defendant Middleton. (Doc. 32.) However, Defendant Middleton
appeared in the case on March 23, 2016. (Doc. 23.) Further confusing the picture of service in this case,
the docket entry for Defendant Ferra’s Return of Service does not indicate that it was not executed or that
service was otherwise unsuccessful.
Rule 4(m) now provides 90 days for service upon a defendant.
Prisco v. Frank, 929 F.2d 603, 604 (11th Cir. 1991)). Further, “[t]he serving party bears the
burden of proof with regard to its validity or good cause for failure to effect timely service.”
Profit v. Americold Logistics, LLC, 248 F.R.D. 293, 296 (N.D. Ga. 2008) (citing Sys. Signs
Supplies v. U.S. Dep’t of Justice, 903 F.2d 1011, 1013 (5th Cir. 1990)).
Defendant Ferra is correct that she was not served within the 120 day window of Rule
4(m). However, as contemplated by the Rule, this Court already found good cause to extend the
time for Ferra to be served to December 31, 2016. (Doc. 44, p. 3.) Ferra has not moved for
reconsideration or otherwise objected to that ruling.
In fact, Ferra’s Motion to Dismiss
inexplicably makes no mention of the ruling. Because Ferra was served in the time provided by
the Court, the claims against her are not due to be dismissed. Moreover, Ferra’s Motion requests
that the Court dismiss the claims against her “with prejudice.” (Doc. 49, p. 3.) However, by the
plain text of Rule 4(m), dismissal based on that rule must be “without prejudice.” Fed. R. Civ. P.
In her Motion to Dismiss, Ferra also largely ignores or misapprehends Plaintiff’s status as
a prisoner proceeding in forma pauperis and the Marshals Service’s role in effecting service. For
example, Ferra argues that Plaintiff “made no attempt to serve Ferra” between March of 2015
when he filed suit and December of 2015 when the Court ordered service after frivolity review.
(Doc. 49, p. 4.) However, it was not Plaintiff’s responsibility to actually effect service. Rather,
under 28 U.S.C. § 1915(d), “the officers of the Court shall issue and serve process” when a
Plaintiff is proceeding in forma pauperis. Moreover, pursuant to 28 U.S.C. § 1915A, the Court
had to screen Plaintiff’s Complaint and its amendments for frivolity before any effort at service
could be made. Equally perplexing is Ferra’s argument that Plaintiff “waited until December [of
2016] to provide the USMS with fees necessary to attempt service on Ferra.” (Doc. 49, p. 4.)
Plaintiff has not paid any fees to the Marshal Service for serving the Complaint, because, like
any party proceeding in forma pauperis, he is not required to prepay fees and costs. Indeed, his
inability to prepay such costs formed the basis of his in forma pauperis Motion. (Doc. 2.)
Even if the Court had not already extended the time for Defendant Ferra to be served,
good cause exists for such an extension. As discussed in the Court’s December 6, 2016, Order,
Plaintiff provided information where he thought Ferra could be served. Furthermore, even if
Plaintiff received a copy of the Return of Service, the notation on the Return of Service did not
make clear that the Marshals Service were unable to reach Ferra. (Doc. 33.) While the notation
included the words “negative results,” it also stated that someone signed for the certified mail.
(Id.) The confusion was only exacerbated by the fact that the same notation was made on
Defendant Middleton’s Return of Service but then Middleton answered the Second Amended
Additionally, Plaintiff faced barriers to timely service inherent in his incarceration. For
example, given the security concerns surrounding prison employees’ personal information,
including their residential addresses, Plaintiff could not obtain location information for
Defendant Ferra. Moreover, it was reasonable for Plaintiff to rely upon the United States
Marshal Service to find and serve Defendant Ferra when the Court had ordered the Marshal
Service to do so. Indeed, it does not appear that the Court or the Marshals Service provided
Plaintiff with any notice regarding the Marshal Service’s efforts to locate Ferra until the Court’s
December 6, 2016, Order. The Marshals Service served Ferra three days after that Order.
For all of these reasons, the Court should DENY Plaintiff’s Motion to Dismiss for failure
to effect timely service.
B. Motion to Dismiss for Failure to Prosecute and Follow a Court Order
The Court should also reject Defendant Ferra’s argument that the claims against her
should be dismissed due to Plaintiff’s failure to prosecute and follow the Court’s Orders. This
Court may dismiss a plaintiff’s claims for failure to prosecute pursuant to Federal Rule of Civil
Procedure 41(b) (“Rule 41(b)”) and the court’s inherent authority to manage its docket. Link v.
Wabash R.R. Co., 370 U.S. 626 (1962); Coleman v. St. Lucie Cty. Jail, 433 F. App’x 716, 718
(11th Cir. 2011) (citing Fed. R. Civ. P. 41(b) and Betty K Agencies, Ltd. v. M/V MONADA, 432
F.3d 1333, 1337 (11th Cir. 2005)). In particular, Rule 41(b) allows for the involuntary dismissal
of a plaintiff’s claims where he has failed to prosecute those claims, comply with the Federal
Rules of Civil Procedure or local rules, or follow a court order. Fed. R. Civ. P. 41(b); see also
Coleman, 433 F. App’x at 718; Sanders v. Barrett, No. 05-12660, 2005 WL 2640979, at *1 (11th
Cir. Oct. 17, 2005) (citing Kilgo v. Ricks, 983 F.2d 189, 192 (11th Cir. 1993)); cf. Local R.
41.1(b) (“[T]he assigned Judge may, after notice to counsel of record, sua sponte . . . dismiss any
action for want of prosecution, with or without prejudice[,] . . . [based on] willful disobedience
or neglect of any order of the Court.” (emphasis omitted)). Additionally, a district court’s
“power to dismiss is an inherent aspect of its authority to enforce its orders and ensure prompt
disposition of lawsuits.” Brown v. Tallahassee Police Dep’t, 205 F. App’x 802 (11th Cir. 2006)
(quoting Jones v. Graham, 709 F.2d 1457, 1458 (11th Cir. 1983)).
It is true that dismissal with prejudice for failure to prosecute is a “sanction . . . to be
utilized only in extreme situations” and requires that a court “(1) conclud[e] a clear record of
delay or willful contempt exists; and (2) mak[e] an implicit or explicit finding that lesser
sanctions would not suffice.” Thomas v. Montgomery Cty. Bd. of Educ., 170 F. App’x 623,
625–26 (11th Cir. 2006) (quoting Morewitz v. West of Eng. Ship Owners Mut. Prot. & Indem.
Ass’n (Lux.), 62 F.3d 1356, 1366 (11th Cir. 1995)); see also Taylor v. Spaziano, 251 F. App’x
616, 619 (11th Cir. 2007) (citing Morewitz, 62 F.3d at 1366). By contrast, dismissal without
prejudice for failure to prosecute is not an adjudication on the merits, and, therefore, courts are
afforded greater discretion in dismissing claims in this manner. Taylor, 251 F. App’x at 619;
see also Coleman, 433 F. App’x at 719; Brown, 205 F. App’x at 802–03.
Defendant Ferra seeks the more difficult to obtain remedy of a “with prejudice” dismissal
for Plaintiff’s alleged failure to prosecute and his disobedience to the Court’s Orders. (Doc. 49,
p. 3.) In support of that request, she again relies upon Plaintiff’s “inexplicable delay” in serving
her with this action. 3 (Doc. 49, pp. 5–6.) However, as laid out above, a proper understanding of
Plaintiff’s status as an in forma pauperis litigant and the history of the filings in this case reveals
that the delay in serving Ferra is not due to any indolence or disregard, much less willful
contempt, by Plaintiff. Furthermore, Plaintiff’s other actions in this case reveal that he has
diligently pursued his claims against Defendant Ferra. Consequently, the Court should DENY
Ferra’s Motion to Dismiss for Failure to Prosecute and Follow a Court Order.
Ferra rightly points out that the delay in serving her has resulted in a delay in this
litigation and in her participation in the other parties’ early discovery efforts. However, for
much of the pendency of this case, discovery has been stayed at Defendants Broome and
Middelton’s requests. Furthermore, dismissal of Plaintiff’s claims would only compound the
Because Ferra has not established a clear record of delay or willful
contempt by Plaintiff, any dismissal would be without prejudice. Thus, Plaintiff would then
Ferra argues that because Plaintiff “obtained service on both Broome and Middleton,” he should have
been able to do the same as to her. Of course, Plaintiff did not serve Broome and Middleton, the
Marshals Service did so. Plaintiff provided the Marshals Service the same information regarding those
Defendants as Broome and Middleton.
likely bring a separate lawsuit against Ferra. Rather than creating such piecemeal litigation, the
Court will employ the far better remedy of allowing for additional discovery as laid out below.
The following deadlines shall control the future litigation of this action. These deadlines
shall not be extended except upon a specific showing of good cause and order of the Court. Fed.
R. Civ. P. 16(b)(4). It is the Court’s expectation that the parties will not need an extension of
these deadlines. The showing of good cause necessary to obtain an extension of any of these
deadlines requires a specific showing of what the parties have accomplished to date in discovery,
what remains to be accomplished, and why the parties have not been able to meet the Court’s
deadlines. Bare boilerplate assertions such as “the parties have diligently pursued discovery to
date, but additional time is necessary” will not suffice to establish good cause. The parties are
reminded to review the Court’s instructions contained in the Court’s December 9, 2015, Order
including the direction that they should not file discovery materials with the Court.
The parties shall complete all discovery in this case, including any interrogatories,
request for production of documents, depositions, and third-party discovery on or
before May 18, 2017.
Plaintiff must furnish any expert witness reports required by Federal Rule of Civil
Procedure 26(a)(2)(B) and provide the disclosures required by Federal Rule of
Civil Procedure 26(a)(2)(C) on or before February 27, 2017.
Defendants must furnish the expert witness reports required by Federal Rule of
Civil Procedure 26(a)(2)(B) and provide the disclosures required by Federal Rule
of Civil Procedure 26(a)(2)(C) on or before March 29, 2017.
The parties must file any dispositive motions, including Daubert motions but
excluding motions in limine on or before April 21, 2017.
Plaintiff’s Motion to Appoint Counsel (Doc. 41)
In this civil case, Plaintiff has no constitutional right to the appointment of counsel.
Wright v. Langford, 562 F. App’x 769, 777 (11th Cir. 2014) (citing Bass v. Perrin, 170 F.3d
1312, 1320 (11th Cir. 1999)). “Although a court may, pursuant to 28 U.S.C. § 1915(e)(1),
appoint counsel for an indigent plaintiff, it has broad discretion in making this decision, and
should appoint counsel only in exceptional circumstances.” Wright, 562 F. App’x at 777 (citing
Bass, 170 F.3d at 1320). Appointment of counsel in a civil case is a “privilege that is justified
only by exceptional circumstances, such as where the facts and legal issues are so novel or
complex as to require the assistance of a trained practitioner.” Fowler v. Jones, 899 F.2d 1088,
1096 (11th Cir. 1990) (citing Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987) and Wahl
v. McIver, 773 F.2d 1169, 1174 (11th Cir. 1985)). The Eleventh Circuit has explained that “the
key” to assessing whether counsel should be appointed “is whether the pro se litigant needs help
in presenting the essential merits of his or her position to the court. Where the facts and issues
are simple, he or she usually will not need such help.” McDaniels v. Lee, 405 F. App’x 456, 457
(11th Cir. 2010) (quoting Kilgo v. Ricks, 983 F.2d 189, 193 (11th Cir.1993)).
The Court has reviewed the record and pleadings in this case and finds no “exceptional
circumstances” warranting the appointment of counsel.
While the Court understands that
Plaintiff is incarcerated, this Court has repeatedly found that “prisoners do not receive special
consideration notwithstanding the challenges of litigating a case while incarcerated.” Hampton
v. Peeples, No. CV 614-104, 2015 WL 4112435, at *2 (S.D. Ga. July 7, 2015). “Indeed, the
Eleventh Circuit has consistently upheld district courts’ decisions to refuse appointment of
counsel in 42 U.S.C. § 1983 actions similar to this case for want of exceptional circumstances.”
Id. (citing Smith v. Warden, Hardee Corr. Inst., 597 F. App’x 1027, 1030 (11th Cir. 2015);
Wright, 562 F. App’x at 777; Faulkner v. Monroe Cty. Sheriff’s Dep’t, 523 F. App’x 696, 702
(11th Cir. 2013); McDaniels v. Lee, 405 F. App’x 456, 457 (11th Cir. 2010); Sims v. Nguyen,
403 F. App’x 410, 414 (11th Cir. 2010); Fowler, 899 F.2d at 1091, 1096; Wahl, 773 F.2d at
1174). This case is not so complex legally or factually to prevent Plaintiff from presenting “the
essential merits of his position” to the Court.
For these reasons, the Court DENIES Plaintiff’s Motion for Appointment of Counsel.
Plaintiff’s Motion to Introduce Witnesses (Doc. 42)
Through his Motion to Introduce Witnesses, Plaintiffs asks that the Court “put into
records the introduction of” six witnesses Plaintiff “plans to use for [this case].” (Doc. 42.) It is
not clear what relief Plaintiff seeks through this Motion. To the extent Plaintiff seeks discovery
about or from these witnesses, he must pursue that discovery absent Court intervention as
instructed in the Court’s December 9, 2015 Order. (Doc. 12, pp. 9–10.) If Plaintiff is seeking to
subpoena these witnesses for trial, no trial has been scheduled in this case. Accordingly, the
Court DISMISSES Plaintiff’s Motion.
For the above-stated reasons, I RECOMMEND that the Court DENY Defendant Ferra’s
Motion to Dismiss. Additionally, the Court DENIES Plaintiff’s Motion to Appoint Counsel and
Motion to Introduce Witnesses.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the Complaint must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
Upon receipt of Objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge. The Clerk of Court is DIRECTED
to serve a copy of this Report and Recommendation upon the Plaintiff and Defendant Broome.
SO ORDERED and REPORTED and RECOMMENDED, this 9th day of January,
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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