Grose v. Napolitano et al

Filing 105

ORDER denying 99 Second Motion to have Defendants Served in their Individual Capacity. Signed by Chief District Judge Louis Guirola, Jr. on 10/22/12 (RLW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
ANTHONY T. GROSE, SR.
v.

PLAINTIFF
CAUSE NO. 1:11CV227-LG-RHW

JANET NAPOLITANO, Secretary,
Department of Homeland Security,
Federal Emergency Management
Agency; and JOHN STEVIAN, Human Resources
Specialist, Department of Homeland Security,
FEMA Human Capital Recruitment

DEFENDANTS

ORDER DENYING SECOND MOTION TO HAVE DEFENDANTS
SERVED IN THEIR INDIVIDUAL CAPACITY BY THE
UNITED STATES MARSHAL SERVICE
BEFORE THE COURT is Anthony T. Grose, Sr.’s Second Motion [99] to
Have Defendants Served in their Individual Capacity by the United States Marshal
Service. The Court finds that the Motion should be denied.
DISCUSSION
Grose sued Defendants Janet Napolitano1 and John Stevian in both their
official and individual capacities. These defendants have only appeared in this
action in their official capacities. This Court dismissed Grose’s claims against
Napolitano and Grose in their official capacities on July 16, 2012, and issued an
Order requiring Grose to show cause why his remaining claims against Napolitano

1

Although Grose has sued Napolitano in her individual capacity, the alleged
discriminatory actions asserted in his Complaint occurred in 2007. Napolitano was
confirmed as Secretary of the Department of Homeland Security on January 20,
2009, and was appointed by President Barack Obama. In a recent pleading, Grose
has admitted that his claims arose during President George W. Bush’s
administration, before Napolitano was appointed. (Pl.’s Proposed Mem. at 16, ECF
80-1).

and Stevian in their individual capacities should not be dismissed for failure to
timely serve process. (Order, ECF No. 70; Order, ECF No. 71). In his response to
the Order to Show Cause, Grose claimed that he had in fact served the defendants
in their individual capacities, but the summonses returned executed in the record
demonstrated that Grose had not properly served the defendants in their individual
capacities. On August 9, 2012, the Court granted Grose additional time to properly
serve these remaining defendants and advised Grose that he could serve the
defendants via certified mail, restricted delivery. (Order, ECF No. 77). The
deadline for service of process established in the Order was September 24, 2012.
(Id.) On August 27, 2012, Grose filed his first Motion asking the Court to Order the
United States Marshal to serve process on the defendants. (Pl.’s Mot., ECF No. 85).
The Court denied that Motion, once again encouraging Grose to serve the
defendants via restricted delivery. (Id.)
On September 26, 2012, Grose filed summonses returned executed as to both
Stevian and Napolitano. (Summonses, ECF Nos. 97, 98). Despite the Court’s clear
instructions, the summonses returned by Grose reflect that he did not serve the
defendants via restricted delivery. As a result, the certified mail was accepted by
individuals other than the defendants. The Court will not order the United States
Marshal to serve process on behalf of a plaintiff that has disregarded the Court’s
instructions for properly serving process.
IT IS, THEREFORE, ORDERED AND ADJUDGED that Anthony T.
Grose, Sr.’s Second Motion [99] to Have Defendants Served in their Individual
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Capacity by the United States Marshal Service is DENIED.
SO ORDERED AND ADJUDGED this the 22nd day of October, 2012.

s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE

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