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)
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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