Pacheco v. Corrections Corporation of America (CCA) et al

Filing 20

ORDER adopting in part Report and Recommendations 16 and Remanding Case. Signed by Honorable David C. Bramlette, III on June 15, 2015. (AA)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
JORGE LUIS PACHECO

PLAINTIFF

VS.

CIVIL ACTION NO: 5:14-cv-88-DCB-MTP

CORRECTIONS CORPORATION OF AMERICA (CCA),
WARDEN BARBARA WAGNER, CRISTINA HALL, MARLA
FARMER, HUGH H. ARNOLD, and JOHN DOES
EMPLOYEES/PERSONNEL

DEFENDANTS

ORDER ADOPTING IN PART REPORT AND
RECOMMENDATION AND REMANDING CASE
This cause is before the Court on Magistrate Judge Michael T.
Parker’s Report and Recommendation of April 24, 2015 [docket entry
no.

16].

Therein,

Judge

Parker

recommends

that

the

case

be

dismissed without prejudice pursuant to Federal Rule of Civil
Procedure 4(m) and 41(b). Also pending is Plaintiff’s, Jorge Luis
Pacheco, Motion for Preliminary Injunction [docket entry no. 12].
Having reviewed the Report and Recommendation, the plaintiff’s
objections thereto, and applicable statutory and case law, the
Court finds as follows:
I. Factual and Procedural Background
Plaintiff Jorge Luis Pacheco instituted this civil rights
action on October 14, 2014. In his complaint, Pacheco argues claims
based on (1) failure to hire qualified medical providers at Adams
County Correctional Facility and (2) failure to provide adequate

1

medical care. He is seeking $20,000,000 in damages and appropriate
treatment for a medical condition.
Because Pacheco is not proceeding in forma pauperis but is
proceeding pro se, the Clerk of Court provided him with summons
forms and instructions for the issuance of service of process under
Federal Rule of Civil Procedure 4, along with a copy of Rule 4.1 On
December 15, 2014, the Clerk issued summons prepared by Pacheco for
all named defendants. Pacheco, however, has never filed a proof of
service for any defendant. The Court has already extended the
deadline and even ordered Pacheco to file proof of service, but he
has failed to do so.
II. Magistrate Judge’s Findings
Judge Parker found that the failure to provide service of
process was fatal to Pacheco’s case under Rules 4(m) and 41(b).
Rule 4(m) provides that a court must dismiss without prejudice an
action against a defendant who has not been served within 120 days
after the complaint was filed. Fed. R. Civ. P. 4(m). Rule 41(b)
provides for dismissal where a plaintiff has failed to prosecute
his case or comply with the Rules or a court order. Fed. R. Civ. P.
41(b). A court may sua sponte dismiss an action under Rule 41(b).
See Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962); Larson v.
Scott, 157 F.3d 1030, 1031 (5th Cir. 1988).

1

All references in this opinon are to the Federal Rules of
Civil Procedure unless otherwise noted.
2

III. Plaintiff’s Objections
Pacheco

timely

Recommendation.2

In

filed
his

his

objections

objections,

to

Pacheco

the
urges

Report

and

that

the

summonses were placed in the prison mailbox for delivery on January
2, 2015. He also attaches pages from his prison mail log. See
Objection to Report & Recommendation, ECF No. 17.
“[P]arties filing objections must specifically identify those
findings objected to. Frivolous, conclusive or general objections
need not be considered by the district court.” Battle v. U.S.
Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987) (quoting Nettles
v. Wainwright, 667 F.2d 404, 410 n.8 (5th Cir. 1982) (en banc)).
Meritorious objections mandate a de novo review of the Report and
Recommendations. 28 U.S.C. § 636(b)(1) (2009). Merely reurging the
allegations in the petition or attacking the underlying conviction
is insufficient to receive de novo review, however. Those portions
of the report not objected to are reviewed only for plain error.
Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th

2

The docket for this case lists the filing date of the
objections as May 14, 2015. The Report and Recommendation was
entered on April 24, 2015. Objections to a Report and
Recommendation must be filed within fourteen days. 28 U.S.C. §
636(b)(1) (2009); L.U. Civ. R. 72(a)(1)(A). Thus, Pachecho was
required to file his objections by May 8, 2015. Under the prison
mailbox rule, “a pro se prisoner’s written objections to a
magistrate’s report and recommendations must be deemed filed and
served at the moment they are forwarded to prison officials for
delivery to the district court.” Thompson v. Raspberry, 993 F.2d
513, 515 (5th Cir. 1993). According to the certificate of service
attached to Pacheco’s objections, they were filed on May 2, 2015.
Therefore, the Court finds them timely.
3

Cir. 1996) (en banc), superseded by statute on other grounds, 28
U.S.C. § 636(b)(1).
Pacheco’s objection mandates de novo review. Even upon this
less deferential standard of review, however, the Court finds that
Pacheco has not met his obligation under the Rules. Rule 4 requires
that proof of service be provided to the Court. Fed. R. Civ. P.
4(l)(1). The mere contention that the summonses were mailed is
insufficient

proof

of

service.

Further,

Pacheco

has

docketed

nothing to show that he has effectuated service on any of the named
defendants.
IV. An Answer Was Filed
Despite Pacheco’s failure to provide proof of service of
process, one named defendant, Corrections Corporation of America
(“CCA”), filed an answer to Pacheco’s complaint after Judge Parker
entered his Report and Recommendation. Because the “[f]ailure to
prove service does not affect the validity of service,” the Court
finds that Pacheco has properly served CCA and the claims against
it should not be dismissed. See Fed. R. Civ. P. 4(l)(3); see also
City of Clarksdale v. BellSouth Telecomms., Inc., 428 F.3d 206, 214
n.15 (5th Cir. 2005) (“Filing an answer to the complaint without
objecting to service of process . . . waive[s] a defendant’s right
to object to service of process.”). In its answer, CCA asserts the
defense of insufficient service of process. See Answer 1, ECF No.
18. But in its response to Pacheco’s objections, CCA concedes that

4

its registered agent was served with process and states that it
“has no objection to the Report and Recommendation being denied as
to CCA.” Resp. Opp. ¶ 5, ECF No. 19.
V. Conclusion
Having conducted a de novo review of the portions of the
Report and Recommendations objected to and reviewed the remainder
for plain error, the Court is satisfied that Judge Parker has
issued a thorough opinion as to the claims against Warden Barbara
Wagner, Cristina Hall, Marla Farmer, and Hugh H. Arnold. Pacheco’s
objections

are

overruled

and

these

claims

dismissed

without

prejudice. However, the case is remanded to proceed against CCA.
VI. Order
IT IS HEREBY ORDERED that the Magistrate Judge’s Report and
Recommendations is hereby ADOPTED IN PART.
FURTHER

ORDERED

that

the

Plaintiff’s

Objections

to

the

Magistrate Judge’s Report and Recommendations are OVERRULED.
FURTHER

ORDERED

that

Defendants

Warden

Barbara

Wagner,

Cristina Hall, Marla Farmer, and Hugh H. Arnold are DISMISSED
WITHOUT PREJUDICE.
FURTHER ORDERED that the case is REMANDED to Judge Parker to
proceed against Defendant Corrections Corporation of America (CCA).
SO ORDERED this the 15th day of June 2015.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

5