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