Castillo v. Johnson et al

Filing 44

ORDER Directing the United States Marshals Service to attempt personal service on Mr. Brantley of the 1 Complaint and 8 Order of 8/8/16. Plaintiff shall notify the Court of Mr. Brantley's present and/or last known address by the close of business on 8/21/2017. Plaintiff must perfect service on Defendant Brantley by 9/15/17. Signed by Chief Judge J. Randal Hall on 08/10/2017. (Attachments: # 1 USM-285) (pts)

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IN THE UNITED STATES DISTRICT SOUTHERN DISTRICT COURT FOR THE OF GEORGIA STATESBORO DIVISION WILLIAM NAVARRO CASTILLO, Plaintiff, * v. NURSE * STRICKLAND and OFFICER CV 616-049 * BRANTLEY, * * Defendants. * ORDER By Order United States Strickland dated August Marshals with a Brantley copy Clerk of States of Plaintiff resultant Court serve on May were serious 1, Service with Answer (Docs. On October 11, Motion 10, 16, to 17.) 2016, Dismiss to and deliberately medical directed needs. forms to (Dkt. based on used excessive that Defendants indifferent (Doc. assist effectuation the Brantley and Complaint 2014, Defendants Brantley and Strickland. 2016.) Court Defendants Plaintiff's prepared USM-285 Marshals the that Defendant Brantley and 'Strickland Plaintiff's 2016, Service to Plaintiff's allegations force against 8, of 8.) the to The United service Entry dated Aug. on 8, Defendant Strickland filed a prewhich On November 8, Plaintiff 2016, has responded. Defendant Strickland filed a Motion to Stay Discovery pending the Court's resolution of her 15, Motion 2016. On to Dismiss, (Docs. 15, November 10, which the 2016, the United Defendant Brantley was the that was not informed name" the a last and found that Marshals working Accordingly, at known Service Georgia States address State for at there on December 19, 2016, efforts on November Marshals Defendant Georgia was or Prison. is Brantley State "no Prison one by that 18, (Doc. at 1.) the Court ordered counsel for inter alia, make David Grossman,1 to, to obtain a Service returned as unexecuted with personnel Defendant Strickland, Mr. reasonable granted 19.) Return as to notation Court name and an address for Defendant Brantley so that he might be served with Plaintiff's Complaint and to notify the Court 24, at 2.) knowledge and former Georgia Court belief, indicating that, "Defendant (Doc. 26, at 1.) counsel also informed the Court that: represent Mr. for Brantley; Mr. (ii) Brantley; to Brantley" Department of Corrections Christopher Brantley.2 address of his efforts. (Doc. On January 4, 2017, counsel for Defendant Strickland filed a notice with the his of the results ("GDC") the best refers of to employee, a Mr. Defendant Strickland's (i) he does not currently he was unable to locate a current and (iii) Mr. Brantley has not 1 On April 5, 2017, Ms. Elizabeth Crowder was substituted for Mr. Grossman as attorney of record for Defendant Strickland. (Doc. 34; see also Docs. 31 & 32. ) 2 In Mr. Grossman's notice to the Court, he refers to Defendant Brantley interchangeably as Mr. "Christopher Bradley" and "Officer Brantley." (See Doc. 26, at 1 (emphasis added).) Mr. Grossman's references to Defendant Brantley by the last name "Bradley" appear to be simple scrivener's errors. (Compare Doc. 26; with Doc. 27 (identifying Defendant Brantley solely as "Christopher Brantley").) 2 responded (Id. to at correspondence 1-2.) Defendant sent to his Strickland's motion requesting permission to file address safety for of Mr. Brantley, this former granted on January 9, Defendant citing Strickland's under filed the March 13, effected on Mr. at the (Doc. Order, it can at the last a known privacy which the and Court On March 1, 2017, last known address for (Doc. 29.) Court ordered that service be Brantley by the United States Marshals Service address 30, 2017, filed the officer, Mr. Brantley with the Clerk under seal. On for address. also seal the (Docs. 27, 28.) counsel known counsel concerns corrections 2017. last provided 3; see by also Defendant Docs. 30-1 Strickland's through 30-4.) counsel. In its the Court specifically noted that it "has done all that to assist Plaintiff in effecting service on Defendant Brantley" and advised Plaintiff that it was his responsibility to promptly case.3 serve (Id.) Defendant or Accordingly, the risk his Court dismissal ordered that from this Plaintiff, 3 (Doc. 30, at 3 ("At this point, the Court has done all that it can to assist Plaintiff in effecting service on Defendant Brantley. Plaintiff is advised that this Order and the Marshals' attempts at service on Mr. Brantley at his last known address DOES NOT relieve Plaintiff of his obligation to perfect service on Defendant Brantley and to press this case forward. Plaintiff is warned that the lack of timely service on Defendant Brantley - even through no fault of his own - may result in the dismissal of his claims against this named Defendant. See Fed. R. Civ. P. 4 (m).").) See also Fed. R. Civ. P. 4 (m) ("If a defendant is not served within 90 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."); Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007) ("[A]lthough we are to give liberal construction to the pleadings of pro se litigants, we nevertheless have required them to conform to procedural rules." (internal quotations and citations omitted)). 3 should he fail to perfect service on Defendant Brantley by April 6, 2017, show cause by April dismiss (the his claims "Show Marshals Cause Service against 20, 2017 Defendant Order"), 3-4.) attempted 24, Apr. (See Apr. 5, failure Docs. 17, of 36, 42; and May service see also 11, receipt prejudice United at States the address as well as two other Dkt. 2017). was The service provided by Defendant Strickland's counsel, addresses. should not Brantley without (IcL_ at subsequently why the Court Entries dated Mar. On July 12, filed with 2017, the a Court demonstrating that the United States Marshals Service was unable to locate or serve Mr. Brantley.4 On April 17, to and the Show Cause legal merits 2017, the Court received Plaintiff's response Order; of (Doc. 40.) therein, his Plaintiff underlying argues Section the 1983 factual claim, but wholly fails to address the issue at hand, namely his failure to effect timely Accordingly, failure to Carroll Cty. service Plaintiff serve on Defendant has Defendant Comm'rs, 476 failed Brantley. to Brantley.5 F.3d 1277, show (See good Doc. cause 37.) for See Lepone-Dempsey 1281 (11th Cir. his v. 2007) 4 Notably, while a certified mail receipt was signed by Ms. Danielle Brantley on or about May 17, 2017 for an address located in Uvalda, Georgia (doc. 40), this is insufficient to constitute service of process on Mr. Christopher Brantley. See Fed. R. Civ. P. 4(e). 5 While "the failure of the United States Marshal to effectuate service on behalf of an in forma pauperis plaintiff through no fault of that plaintiff constitutes 'good cause' for the plaintiff's failure to effect timely service within the meaning of Rule 4(m)," Ranee v. Rocksolid Granit USA, Inc., 583 F.3d 1284, 1288 (11th Cir. 2009), an incarcerated plaintiff proceeding in forma pauperis "may not remain silent and do nothing to effectuate such service," Fowler v. Jones, 899 F.2d 1088, 1095 (11th Cir. 1990) (citations omitted). See also id. ("At a minimum, a plaintiff should request service upon the appropriate defendant and attempt to remedy any apparent service defects of which a plaintiff has knowledge." (citations omitted)). 4 ("Good cause reliance exists on negligence, only faulty when some advice, rather prevented service." and alterations omitted)). outside than factor, inadvertence (internal quotations, Similarly, such as or citations, the Court cannot find any other good cause excusing Plaintiff's failure to serve Defendant Brantley. Clerk of their Indeed, this Court relevant Federal Rule the United States have exercised due responsibilities of Civil Marshals under Procedure Service diligence 28 U.S.C. 4(c)(3) in § upon and the performing 1915(d) the and information provided by Plaintiff and others and these efforts have failed through no fault of the Marshals or Clerk. The Court concludes that despite the reasonable efforts of the Marshals and Clerk, Mr. Brantley cannot be located. Further, Plaintiff - who has been provided notice of the Marshals' failure to serve Defendant Brantley and his personal responsibility to effectuate timely service on Defendant Brantley - has taken no steps to remedy this failure of service.6 Nevertheless, circumstances that the may Court is warrant bound an Plaintiff to serve Defendant Brantley. to consider extension of any other time See Lepone-Dempsey, for 476 6 Notably, while Plaintiff has filed a "Motion for Discovery", he only seeks by way thereof evidence regarding the circumstances of his injuries and treatment rather than present whereabouts. about the (See Doc. identity of 38 11 1-5.) "Defendant Moreover, Brantley" or his because Defendant Strickland's counsel has already provided the name of the individual believed to be "Defendant Brantley" (i.e., Mr. Christopher Brantley) and the last known address of that individual - which information Mr. Grossman claims to have obtained from the Georgia Department of Corrections and a "Lexis search" - and service has already been attempted and failed at that address (see docs. 26, 29, 42), the Court has no reason to believe that any such discovery, even if requested, would be of benefit to Plaintiff. 5 F.3d at fails 1282 to to Rule any 4(m), other based on the the a district show good cause pursuant whether ("[W]hen the of the statute underlying claim. of limitations, district warrant One limitations that effect court case/') . of finds failing to circumstances facts relevant for court must an plaintiff timely still factor run on service consider extension such has a of is time whether Plaintiff's See id. (''Although the running of the statute which barred the plaintiffs from refiling their claims, does not require that the district court extend time for service of process under district court to at Rule 4 (m) , it was least Plaintiff's claims against of force and deliberate consider Doc. 7, indifference at 7-11); such claims statute of limitations in Georgia. 556, 561 statute Because (11th of Cir. 1996) limitations Plaintiff's factor."). Here, Defendant Brantley for excessive use to are brought pursuant to Section 1983 also this incumbent upon the claims 1 at 4-14; are governed by Plaintiff was confined at see a two-year that Georgia's Section Defendant 1983 two-year actions). Brantley concern actions that occurred - and injuries suffered - on May 1, while need See Rozar v. Mullis, 85 F.3d to against serious medical (see doc. (holding applies a Georgia State Prison 2014 in Reidsville, Georgia and Plaintiff was immediately aware of these injuries and who caused them (see doc. 1, at 4-14), the two-year statute of limitations for his claims began to run on that date. See Rozar, 85 F.3d at 561-62 (''Federal law determines when a federal civil rights claim accrues. The general federal rule is that the statute of limitations does not begin to facts which would support a cause of action run until the are apparent or should be apparent to a person with a reasonably prudent regard for his rights." alterations against (internal omitted)). Defendant pursuant to Rule quotations, Accordingly, Brantley are if citations, Plaintiff's dismissed without and claims prejudice 4(m), they will effectively be dismissed with prejudice given that the statute of limitations to bring such an action also would have O.C.G.A. § passed. See 9-2-61. Rozar, 85 Therefore, F.3d the at 561-62; Court will see grant Plaintiff one final extension of the time for service of process under Rule 4 (m) before dismissing his claims against Defendant Brantley. Upon the foregoing and due consideration, IT IS HEREBY ORDERED that Plaintiff shall notify the Court of Mr. Christopher Brantley's present and/or last known address(es) by the close of business on August 21, 2017. of Plaintiff's Order dated Complaint August 8, IT IS FURTHER ORDERED that a copy (doc. 2016 1) (doc. and 8) a copy shall be of addresses for (see docs. Mr. specific address(es) Order that are 29, Christopher 40, Court's served upon Mr. Christopher Brantley at his last known addresses Uvalda, Georgia the in Lyons and 42 (providing the last known Brantley)) - as well as any provided by Plaintiff in response to this received by August 25, 2017 - by the United States Marshals Service without prepayment of Civ. P. to 4(c)(3). attempt The United States Marshals personal service aforementioned addresses. Plaintiff Marshals' DOES service Mr. See Fed. R. Civ. again advised See Fed. R. Service is DIRECTED Brantley P. that attempts at service on Mr. addresses perfect is on cost. at the and the 4(e) (2). this Order Brantley at his last known NOT relieve Plaintiff on Defendant Brantley of and his to obligation press this to case forward, and he is again warned that the lack of timely service on Defendant Brantley may result in the dismissal of his claims against this named Defendant. Plaintiff fail to perfect Friday, September 15, failed to asserted timely by dismissed Plaintiff without service 2017, serve See Fed. R. Civ. P. Defendant Should Brantley by Plaintiff will be deemed to have Defendant against prejudice on 4 (m) . Brantley Defendant pursuant to and the Brantley Rule 4(m) claims will be without further notice. ORDER ENTERED at Augusta, August, Georgia, this /Q^4^ day of 2017. !,, CHIEF JUDGE IITEjb STATES DISTRICT COURT 1ERN DISTRICT OF GEORGIA

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