Turner v. Bourgeois

Filing 6

ORDER ADOPTING REPORT AND RECOMMENDATIONS: THE COURT HEREBY ADOPTS the Report and Recommendation 4 of Magistrate Judge Anderson as the findings and conclusions of this Court, and dismisses this matter without prejudice. Signed by Honorable David C. Bramlette, III on 6/5/18 (VM)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
JOHNNY STEVE TURNER

PLAINTIFF

VS.

CIVIL ACTION NO. 3:17-CV-377-DCB-LRA

LAWRENCE P. BOURGEOIS, JR.,
CIRCUIT CLERK OF HARRISON COUNTY

DEFENDANT

ORDER ADOPTING REPORT AND RECOMMENDATION
This cause is before the Court on Magistrate Judge Linda R.
Anderson’s Report and Recommendation (docket entry 4), to which no
objections were filed by the plaintiff.

Having carefully reviewed

the Report and Recommendation, and applicable statutory and case
law, the Court finds that plaintiff’s case should be dismissed sua
sponte for plaintiff’s failure to prosecute the case by not having
caused process to be issued and served within 90 days after filing
the Complaint.
On May 18, 2017, Johnny Steve Turner (“Turner”) filed a
complaint against Defendant Lawrence P. Bourgeois, Jr., alleging
that the Circuit Clerk of Harrison County had erroneous personal
information regarding him in the records of the court.

By Order

of June 6, 2017, Turner was granted in forma pauperis status.
(docket entry 3).
Procedure

4

and

Turner was referred to Federal Rule of Civil
Local

Uniform

Civil

Rule

4

for

information

regarding service of the summons and Complaint; he was advised
that service must be completed within 90 days of filing the

Complaint.

The Clerk was instructed to send a blank summons form

to Turner, and Turner was directed to complete it and request that
it be issued and served if he wished to do so.

After the blank

summons form was sent to Turner, he failed to complete the summons
form and failed to request that the completed forms be issued and
served to the defendants.

If Turner had completed the summons

form and requested that process be served, the Court would have
directed

that

the

United

States

Marshals

Service

serve

the

Complaint pursuant to 28 U.S.C. § 1915(d).
Fed.R.Civ.P. 4(m) provides as follows:
(m) Time Limit for Service. 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 the
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.
Turner filed this case on May 18, 2017, and the 90-day period
for serving process expired on or about September 6, 2017. (docket
entry 4).
never

The Clerk mailed the correct forms to Turner, but he

returned

them

or

requested

that

summons

be

issued.

In

addition, Turner never requested additional time to serve process.
Magistrate Judge Anderson’s Report and Recommendation was sent to
the Plaintiff as “notice to the plaintiff” as required by Rule

2

4(m).

However, the mail was returned as undeliverable. (docket

entry 5).
In her Report and Recommendation, Magistrate Judge Anderson
finds that the Complaint filed by Plaintiff should be dismissed
without prejudice for failing to serve process in accordance with
Rule 4(m).
Accordingly,
THE COURT HEREBY ADOPTS the Report and Recommendation of
Magistrate Judge Anderson (docket entry 4) as the findings and
conclusions of this Court, and dismisses this matter without
prejudice.
A final judgment shall be entered in accordance with Rule 58
of the Federal Rules of Civil Procedure.
SO ORDERED, this 5th day of June, 2018.

_/s/ David Bramlette________
UNITED STATES DISTRICT JUDGE

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