ASHLEY v. METELOW et al
Filing
118
OPINION. Signed by Judge Renee Marie Bumb on 11/19/2019. (tf, n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
KEITH ASHLEY,
Plaintiff,
THE HONORABLE RENÉE MARIE BUMB
v.
Civ. No. 15-3153 (RMB-AMD)
DAVID METELOW, et al.,
OPINION
Defendants.
APPEARANCES:
Keith Ashley
575398/589308B
East Jersey State Prison
Lock Back R
Rahway, NJ 07065
Plaintiff pro se
BUMB, United States District Judge
This matter comes before the Court on an order to show cause
why the claims against Kenneth Nelsen should not be dismissed for
failure to serve the summons and complaint. (ECF No. 102). After
considering Plaintiff Keith Ashley’s response to the order to show
cause, (ECF No. 110), the Court will dismiss Kenneth Nelsen for
failure to serve. Fed. R. Civ. P. 4(m).
I.
BACKGROUND
Plaintiff is a convicted and sentenced state prisoner in the
custody of the New Jersey Department of Corrections (“DOC”). On
May 5, 2015, Plaintiff filed a civil rights complaint under 42
U.S.C. § 1983 against David Metelow, Don Siebert, Mr. Marrocoo,
and Tanya Stelz for allegedly violating his Fourteenth Amendment
right
to
equal
protection,
First
Amendment
right
to
free
association, and his New Jersey Administrative Code Inmate Rights
and Responsibilities. (ECF No. 1). On June 17, 2016, Plaintiff
moved to amend his complaint to add claims against Kenneth Nelsen
and SCO Lynch. (ECF No. 11). The Court permitted Plaintiff’s claims
against Defendants Metelow, Siebert, Marrocoo, Stelz, and Nelsen
to proceed. (ECF No. 19). SCO Lynch was dismissed from the matter,
and summonses were issued for the remaining defendants. (ECF No.
23).
The U.S. Marshals Service returned Defendant Nelsen’s summons
unexecuted on May 3, 2017. (ECF No. 25). The instructions on
Marshal Form 285 directed the Marshals Service to serve Nelsen at
South Woods State Prison in Bridgeton, New Jersey. (Id.). The
Trenton, New Jersey address for the DOC was listed in the “Special
Instructions” section. (Id.). The Marshals wrote in the “Remarks”
section: “Retired Former Administrator -> left South Woods approx.
6 yrs ago to go to another institution – last post will have file
– but South Woods doesn’t know where his last post was. Return to
plaintiff.” (Id.).
Two months later, Plaintiff wrote to Magistrate Judge Donio
to request another Marshal Form 285 in order to serve Nelsen. (ECF
2
No. 31). A new form was sent, and Plaintiff returned the form on
September 7, 2017. (ECF No. 36). The Clerk’s Office issued new
summons to Defendant Nelsen. (ECF No. 37). This form directed the
Marshals to serve Nelsen at the Trenton Office of the DOC and
provided a phone number. (ECF No. 42).
The summons was once again returned unexecuted on December 1,
2017. (Id.). The “Remarks” section indicated that the summons had
been forwarded to the Trenton office for service but that service
could not be completed because the “[i]ndividual [was] no longer
at Department.” (Id.). Plaintiff wrote to the Court a year later
asking why Nelsen was not in the case. (ECF No. 58). The docket
does not indicate any further communication regarding Defendant
Nelsen until this Court issued its order to show cause on October
21, 2019. (ECF No. 102).
II.
DISCUSSION
A.
Standard
The Federal Rules of Civil Procedure require the complaint
to be served within 90 days after the complaint is filed. Fed.
R. Civ. P. 4(m). After that time and after providing notice to
the plaintiff, the court must dismiss any defendant who has not
been served unless the plaintiff can show good cause for failing
to serve the defendant.
B.
Good Cause
3
Plaintiff argues he has good cause for failing to serve
Defendant
Nelsen.
(ECF
No.
110).
He
argues
that
it
is
“incomprehensible” that the Department of Corrections accepted
service for one retired employee, Siebert, but did not accept
service for Nelsen. (Id. at 3). He further asserts that the
Marshals Service failed to state that they attempted to serve
Nelsen in Trenton the first time. (Id. at 4).
The Court must first consider whether good cause exists for
an extension of time. See Petrucelli v. Bohringer & Ratzinger, 46
F.3d 1298, 1305 (3d Cir. 1995). “If good cause is present, the
district court must extend time for service and the inquiry is
ended. If, however, good cause does not exist, the court may in
its discretion decide whether to dismiss the case without prejudice
or extend time for service.” Id. “[T]he United States Court of
Appeals for the Third Circuit has advised that a Court should
consider the ‘(1) reasonableness of plaintiff’s efforts to serve
(2) prejudice to the defendant by lack of timely service and (3)
whether plaintiff moved for an enlargement of time to serve.’”
Nabi v. Childs, No. 19-12872, 2019 WL 5800254, at *4 (D.N.J. Nov.
7, 2019) (quoting MCI Telecomms. Corp. v. Teleconcepts, Inc., 71
F.3d 1086, 1097 (3d Cir. 1995)).
The Court finds that Plaintiff has not shown good cause for
failing to serve Defendant Nelsen. In considering “good cause,”
“the primary focus is on the plaintiff's reasons for not complying
4
with the time limit in the first place.” MCI Telecommunications,
71 F.3d at 1097. Plaintiff lays the blame at the feet of the DOC
for failing to accept service and the Marshals for failing to
follow Plaintiff’s service instructions. Neither of these is a
good reason. Whatever the reason the DOC chose to accept service
for one retired employee and not another, Plaintiff knew that
Nelsen had not been served. After the first summons was returned,
he wrote a letter to Magistrate Judge Donio requesting a second
285 form. (ECF No. 31). The Clerk’s Office acceded to his request
and sent him a new form. (ECF No. 35).
Even if Plaintiff was reasonably diligent in his service
efforts up until this point, he was not diligent after his first
failed attempt to serve Nelsen. The record reflects that the
Marshals Service forwarded the second summons to Trenton for
service per Plaintiff’s instructions, but they were still unable
to serve Nelsen. (ECF No. 42). The summons was returned on December
1, 2017; Plaintiff waited until November 21, 2018 to write to the
Court to ask why Defendant Nelsen was not participating in the
case. (ECF No. 58). In that time, a motion to dismiss had been
granted in part. (See ECF No. 54). Waiting nearly a year after a
dispositive motion is adjudicated is not a reasonably diligent
effort to serve Nelsen. In addition, Plaintiff has not contacted
the Court since that time despite knowing that Nelsen was not a
part of this case. “Even allowing for Plaintiff's pro se status,
5
given the time he has had to address the problem it cannot be
reasonably concluded that he has been diligent or made a good faith
effort to do so.” Landy v. Irizarry, 884 F. Supp. 788, 793
(S.D.N.Y. 1995). Plaintiff has provided no good reason for failing
to serve Nelsen once the second summons was returned. He did not
ask for additional time to serve Nelsen or for a new 285 form.
(See ECF No. 58).
Having found that Plaintiff did not have good cause for
failing to serve Defendant Nelsen, the Court declines to exercise
its discretion to permit service at this time. The matter is
proceeding to trial in a few weeks against the other defendants.
All defendants would be prejudiced if Plaintiff were permitted to
continue his claims against Nelsen this late in the litigation.
The claims against Nelsen are dismissed.
III. CONCLUSION
For the reasons discussed above, the claims against Nelsen
are dismissed. An appropriate Order follows.
Date: November 19, 2019
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
6
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?