Darnell v. Jimenez et al
ORDER DISMISSING PLAINTIFF'S CLAIMS WITHOUT PREJUDICE Signed by District Judge Halil S. Ozerden on 8/11/2017 (wld)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JERRY LEE DARNELL
JAIME JIMENEZ, et al.
Civil No. 1:16cv30-HSO-JCG
ORDER DISMISSING PLAINTIFF’S CLAIMS WITHOUT PREJUDICE
This matter is before the Court sua sponte for case management purposes
pursuant to Federal Rule of Civil Procedure 4(m) and due to Plaintiff Jerry Lee
Darnell’s failure to comply with the Court’s Orders to properly serve Defendants
and file Proofs of Service. After due consideration of the record and relevant legal
authority, the Court finds that Plaintiff’s claims against all Defendants should be
dismissed without prejudice.
Plaintiff Jerry Lee Darnell (“Plaintiff”) filed a pro se Complaint  on
February 3, 2016, pursuant to 42 U.S.C. § 1983. On February 23, 2016, the Court
denied  Plaintiff’s application  to proceed in forma pauperis and required him
to pay the $400.00 filing fee within 30 days. Plaintiff paid the filing fee to the Clerk
of Court on March 17, 2016.
On March 18, 2016, the Clerk sent Plaintiff a Memorandum  advising him
that he “is responsible for service of process pursuant to Rule 4 of the Federal Rules
of Civil Procedure.” Mem.  at 1. The Clerk supplied Plaintiff with detailed
instructions for issuing a summons and explained that service in compliance with
Federal Rule of Civil Procedure 4 was required. Id. The Clerk warned that if these
steps were not taken, “this case may be dismissed as provided for in the Federal
Rules of Civil Procedure.” Id. The Clerk enclosed a copy of Rule 4 with the
Memorandum to Plaintiff. Id.
On April 8, 2016, Plaintiff caused Summonses to be issued for Defendants
Latasha Clay, Joseph Cooley, Unknown Green, Unknown Hardy, Jaime Jimenez,
and Ronald Woodall. Plaintiff returned the Summonses as executed, but Plaintiff
had signed each Proof of Service as the process server. See Proofs of Service ,
. On May 26, 2016, Plaintiff moved  for a default judgment against Clay,
Cooley, Green, Hardy, Jimenez, and Woodall. On October 17, 2016, the Court
denied Plaintiff’s Motion for Default Judgment  and set aside the Clerk’s Entry
of Default. Order  at 9. The Court directed Plaintiff to properly serve Clay,
Cooley, Green, Hardy, Jimenez, and Woodall in the manner required by Rule 4 and
to file the proper proofs of service with the Clerk of Court, all by November 18,
2016. Id. at 9-10. The Court warned Plaintiff that
should he fail to properly serve any of these Defendants and/or
fail to file proper notice of said service by November 18, 2016, any
unserved Defendant may be dismissed without prejudice without
further notice to Plaintiff, unless Plaintiff is able to show good
cause for such failure.
Id. at 10 (emphasis in original). The Court directed the Clerk to mail a copy of its
Order along with summons forms to Plaintiff at his last known address. Id.
On November 17, 2016, Plaintiff filed a Motion for Extension of Time to Serve
Process . The Magistrate Judge granted Plaintiff’s Motion  in part and
denied it in part, see Nov. 18, 2016, Text Order, and ordered that “Plaintiff’s
deadline to serve all defendants in compliance with Federal Rule of Civil Procedure
4 and file proof of such service is 12/9/2016. Plaintiff is reminded that it is his
responsibility to prosecute the case,” id.
On December 12, 2016, Plaintiff filed what he characterized as “Proof of
Service by certified mail for all Defendants . . . .” Proof of Service  at 1.
Plaintiff attached United States Postal Service (“USPS”) production and tracking
information from USPS.com indicating that four items had been mailed on
November 15, 2016, via USPS certified mail, and were received in Leakesville,
Mississippi, on November 16, 2016. Plaintiff also attached signed certified mail
receipts which indicated that articles addressed to “Kim Green,” “Ronald Woodall,
MD,” “Dr. Jaime Jimenez,” “Joseph Cooley,” and “Kera D. Hardy” were delivered,
though not all were signed for by the addressee. Proofs [36-2] at 1, 3, 5-6, 8. One
addressed to “Latasha Clay” was returned to sender. Id. at 9.
On December 19, 2016, Plaintiff sent a letter to the Clerk of Court attaching
alias Summonses which had been issued for each Defendant. Letter  at 1.
Plaintiff stated that
[t]he Court has the certified postal slips. I could not mail anything from
WCCRF certified mail. Tekeshia Jones will be sending the Proof of
Service forms because she mailed the summons [sic] through the postoffice certified mail for me.
Id. Proofs of Service  were filed on December 29, 2016. Each was signed by
Tekeshia Jones, who averred that she had “sent summons by certified mail.” Proofs
 at 1-5.
On February 16, 2017, Plaintiff filed another Motion for Default Judgment
 which the Court denied on June 19, 2017, on grounds that Plaintiff had not
properly served Defendants in accordance with Rule 4. See Order  at 6-8. The
Court ordered as follows:
Plaintiff must properly serve Defendants and must file the proper proofs
of service with the Clerk of Court, all in accordance with Federal Rule of
Civil Procedure 4, no later than August 3, 2017. Plaintiff is warned
that should he fail to properly serve any Defendant or fail to file
a proper proof of service in the record as to any Defendant by
August 3, 2017, that Defendant will be dismissed without
prejudice, without further notice to Plaintiff pursuant to Federal
Rule of Civil Procedure 4(m).
Id. at 8 (emphasis in original).
Since that time, Plaintiff has filed nothing into the record, and has not
sought to have alias summonses issued for any Defendant. The record is devoid of
any indication that Plaintiff has actually attempted to serve any Defendant since
the date of the Court’s Order  entered on June 19, 2017.
Federal Rule of Civil Procedure 4(m) provides in relevant part that
[i]f 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
Fed. R. Civ. P. 4(m).
“Proof of good cause requires at least as much as would be required to show
excusable neglect, as to which simple inadvertence or mistake of counsel or
ignorance of the rules usually does not suffice.” Thrasher v. City of Amarillo, 709
F.3d 509, 511 (5th Cir. 2013) (quotation omitted). “Even if the plaintiff lacks good
cause, the court has discretion to extend the time for service.” Id.
In contravention of this Court’s Orders, Plaintiff has not filed the proper
waivers or proofs of service. There is no indication from the record that any
Defendant has ever been properly served, even though Plaintiff filed his Complaint
 on February 3, 2016, over 550 days ago, and was informed by the Clerk of Court
that he was responsible for service of process pursuant to Rule 4, see Mem.  at 1,
on March 18, 2016, which was 510 days ago.
Plaintiff has been provided ample opportunity to properly serve Defendants
and has simply failed to do so. Plaintiff has not shown good cause for his failure
and has not demonstrated that there is any basis for granting a discretionary
extension. The Court will dismiss Plaintiff’s claims against Defendants without
prejudice pursuant to Rule 4(m).
Even if dismissal was not appropriate under Rule 4(m), the Court would
nevertheless dismiss Plaintiff’s claims. In addition to Rule 4(m)’s 90-day service
requirement, this Court also has the inherent authority to dismiss an action for
Plaintiff’s failure to prosecute. See Link v. Wabash Railroad, 370 U.S. 626, 630-31
(1962); McCullough v Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988). The Court
must be able to clear its calendar of cases that remain dormant because of the
inaction or dilatoriness of the parties seeking relief, so as to achieve the orderly and
expeditious disposition of cases. Such a sanction is necessary in order to prevent
undue delays in the disposition of pending cases and to avoid congestion in the
calendars of the court. See Link, 370 U.S. at 630-31.
The record in this case is clear that Plaintiff has willfully failed to comply
with this Court’s Orders and with Rule 4(m) and has exhibited contumacious
conduct. Plaintiff filed his Complaint  more than a year and a half ago. The
Court has given Plaintiff adequate notice and additional time to properly serve
Defendants. The Clerk of Court supplied Plaintiff with instructions and a copy of
Rule 4, Mem.  at 1, which Plaintiff has not followed.
There is no indication in the record that Plaintiff has properly served
Defendants, and it does not appear that Plaintiff has made any effort to serve them
since the Court’s last Order  was entered over seven weeks ago. The Court gave
Plaintiff ample notice that he was required to properly serve all Defendants with
process, failing which his claims may be dismissed. See, e.g., Order  at 8; Order
 at 10; Mem.  at 1.
Plaintiff has failed to properly serve Defendants within the time allowed
under Rule 4(m), or within the additional time afforded him by this Court. Plaintiff
has not sought an additional extension to serve Defendants, shown good cause for
his failure, or otherwise demonstrated that an extension should be granted.
Moreover, it does not appear that Plaintiff has ever had summonses issued as to
some Defendants, including South Mississippi Correctional Institution (“SMCI”),
Centurion Medical Provider, and Southern Eye Center. Plaintiff’s claims against
Defendants should be dismissed without prejudice pursuant to Rule 4(m) and for
failure to prosecute and comply with the Court’s Orders.
IT IS, THEREFORE, ORDERED AND ADJUDGED that, Plaintiff’s
claims against all Defendants in this case are DISMISSED WITHOUT
SO ORDERED AND ADJUDGED this 11th day of August, 2017.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?