POWELL v. ORTIZ et al

Filing 26

OPINION. Signed by Judge Noel L. Hillman on 1/17/2023. (amv,n.m.)

Case 1:20-cv-00593-NLH-SAK Document 26 Filed 01/17/23 Page 1 of 8 PageID: 168

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
SHAWN ALEXANDER POWELL,
:
:
Plaintiff,
:
Civ. No. 20-0593 (NLH) (SAK)
:
v.
:
OPINION
:
:
DAVID E. ORTIZ, et al.,
:
:
Defendants.
:
______________________________:
APPEARANCES:
Shawn Alexander Powell
70439-056
Federal Correctional Institution-Terre Haute
P.O. Box 33
Terre Haute, IN 47808
Plaintiff pro se
HILLMAN, District Judge
On January 16, 2020, Plaintiff Shawn Alexander Powell, a
federal prisoner, filed this complaint alleging deliberate
indifference to his medical needs under Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971)
and Carlson v. Green, 446 U.S. 14 (1980) arising from four skin
abscesses he suffered in December 2016 through March 2018 while
at FCI Fort Dix.
in part.

The Court permitted the complaint to proceed

ECF No. 5.

On November 9, 2020, Plaintiff filed a motion for an
injunction against several FCI Fort Dix staff members.

ECF No.

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9.

Plaintiff’s motion requested that staff provide him with

informal remedy forms, that staff refrain from opening his legal
mail outside of his presence, and that the food administration
staff prepare and cook his food in compliance with his special
Kosher diet.

On November 13, 2020, Plaintiff filed a “Motion to

Order Defendants to Reply” to his complaint.

In that motion,

Plaintiff stated that he returned U.S. Marshal Form 285 (“USM285 Forms”), but he had not been notified as to whether the
defendants had been served.

ECF No. 10.

On December 1, 2020, Plaintiff was transferred to FCI
Fairton.

ECF No. 15 at 1.

On December 2, 2020, at the request

of the USMS, the Clerk’s office reissued the summonses for
Defendants D. Ortiz and C. Smith based on the two USM-285 Forms
completed by Plaintiff on September 8, 2020 and received by the
Clerk’s office on September 18, 2020.

ECF Nos. 7, 13.

summons were returned as executed on December 3, 2020.
14.

The
ECF No.

These Defendants’ responses to Plaintiff’s complaint were

due by February 1, 2021.
action.

Defendants did not appear in the

Defendants D. Ortiz and C. Smith were served by the

USMS a second time on February 25, 2021.1

ECF No. 16.

The

The same September 8, 2020 USM-285 Forms were used in the
December 3, 2020 service and the February 25, 2021 service.
duplicative service appears to be an internal USMS
administrative error.
1

2

The

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responses to Plaintiff’s complaint from this second service of
process were due by April 26, 2021.
On December 11, 2020, Plaintiff filed a second motion for
an injunction asking the Court to direct FCI Fairton staff to
give him treatment for tooth pain, provide him with grievance
forms, and to properly prepare his Kosher meals.

ECF No. 15.

The Court denied all Plaintiff’s motions on June 28, 2021.
No. 19.

ECF

In addressing Plaintiff’s service arguments, the Court

noted that “The clerk’s office received the 285 Forms Plaintiff
completed for Defendants D. Ortiz and C. Smith, and the USMS
served those Defendants.”

ECF No. 18 at 4.

It also noted:

To date, and despite having been served twice, D. Ortiz
and C. Smith have not appeared in the action. Although
the Court cannot order D. Ortiz and C. Smith to respond
to Plaintiff’s complaint as he requests in his November
13, 2020 motion, the Court notes that the Federal Rules
of Civil Procedure provide a procedure for instances
where a properly served defendant fails to respond a
plaintiff’s complaint. The obligation to follow this
procedure and pursue his claims is on Plaintiff.
Relatedly, the Court further notes that Plaintiff has
not returned USMS 285 Forms for the other nine named
defendants, and therefore they have not been served with
Plaintiff’s complaint. Under Fed. R. Civ. P. 4(m), “if
a defendant is not served within 5 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 appropriate
period.” It has been over eight months since the Court
permitted Plaintiff’s Eighth Amendment violation claims
to proceed, and Plaintiff has not completed and returned
the USMS 285 Forms for nine of the defendants. Without
3

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the completed USMS 285 Forms, the USMS is unable to serve
those defendants.
ECF No. 18 at 4-5 (footnote omitted).
The Court ordered Plaintiff to show cause as to why his
claims against Defendants M. Grissom, J. Wilk, Nicoletta TurnerFoster, E. Fletcher, G. Martin, J. Watt, Ms. Tucker, J. Suero,
and Counselor T. Jones should not be dismissed for lack of
service.

ECF No. 19.

That Order, mailed to FCI Fairton, was

returned to the Court as undeliverable on September 2, 2021
because Plaintiff left Fairton on May 19, 2021.

ECF No. 20.

On September 27, 2021, the Court issued a new order noting
that Plaintiff had failed to comply with his affirmative duty to
inform the Court of any change in address, Local Civ. R. 10.1,
and directed that the June 28, 2021 Order be resent to Plaintiff
at his new location, FCI Terre Haute.

ECF No. 21.

Plaintiff

was given additional time to respond to the Order to Show Cause
regarding the lack of service.

Id.

Plaintiff submitted his response on October 26, 2021.
No. 22.

ECF

He claimed that he did not serve Defendants M. Grissom,

J. Wilk, Nicoletta Turner-Foster, E. Fletcher, G. Martin, J.
Watt, Ms. Tucker, J. Suero, or Counselor T. Jones because the
Court did not provide Plaintiff with enough copies for him to
complete a USM-285 Form for each named Defendant.

Plaintiff

also asserted that he did not know the other Defendants’ full

4

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names and thus could not complete USM-285 Forms for Defendants
M. Grissom, J. Wilk, Nicoletta Turner-Foster, E. Fletcher, G.
Martin, J. Watt, Ms. Tucker, J. Suero, or Counselor T. Jones.
Additionally, he claimed he was unable to complete USM-285 Forms
because he was under difficult circumstances, namely: (1) he was
on suicide watch from May 17, 2021 to late June 2021, (2) his
property (including court records, a calendar, legal papers,
legal notes, and research materials concerning the case) was
only returned in July of 2021, and (3) FCI Terre Haute had
limited movement due to Covid-19 such that he did not have
access to research civil case law, access pertinent information
regarding defendants, and lacked unspecified legal papers.

He

also sought an entry of an order of default against Defendants
David E. Ortiz and Charles C. Smith for their failure to answer
the complaint.
On October 27, 2021, counsel for Defendants Ortiz and Smith
submitted a letter to the Court seeking to clarify the status of
service represented in Plaintiff’s response.

ECF No. 23.

Defendants Ortiz and Smith argued that the Court should deny
Plaintiff’s request for default because service was incomplete
under Federal Rule of Civil Procedure 4(i)(3), which requires a
plaintiff suing a federal employee in his or her individual
capacity to also serve the United States.
4(i)(3).

Fed. R. Civ. P.

“To serve the United States, Plaintiff must serve the
5

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United States Attorney and the Attorney General. . . . Plaintiff
failed to comply with either of these requirements.”

ECF No. 23

at 1-2.
The Court denied Plaintiff’s motion for default based on
his failure to properly serve the United States.

ECF No. 24.

“[T]he Court emphasizes that Plaintiff has already been given a
substantial period of time beyond Rule 4(m)’s ninety-day
deadline to serve M. Grissom, J. Wilk, Nicoletta Turner-Foster,
E. Fletcher, G. Martin, J. Watt, Ms. Tucker, J. Suero, and
Counselor T. Jones.”

Id. at 7.

The Court extended the time for

service for good cause due to the lack of enough 285 Forms and
“other impediments to timely service” and gave Plaintiff one
final opportunity to complete service on Defendants.

Id. at 8.

The Court ordered the Clerk to mail Plaintiff
a sufficient number of USM-285 Forms to serve Defendants
David E. Ortiz, Charles C. Smith, M. Grissom, J. Wilk,
Nicoletta Turner-Foster, E. Fletcher, G. Martin, J.
Watt, Ms. Tucker, J. Suero, and Counselor T. Jones, as
well as forms to serve the United States Attorney for
the District of New Jersey and the United States Attorney
General.
Specifically, the Clerk shall provide
Plaintiff with thirteen (13) USM-285 Forms (which
includes nine (9) USM-285 Forms to serve each
individual, named Defendant (since Defendants David E.
Ortiz and Charles C. Smith were already individually
served, the Court holds that Plaintiff only needs to
serve the United States to complete service of these two
Defendants), as well as one (1) USM-285 Form to serve
the United States Attorney for the District of New Jersey
and one (1) USM-285 Form to serve the United States
Attorney General, and two (2) extra USM-285 Forms
in case Plaintiff needs an extra copy . . . .

6

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Id. at 8-9 (footnote omitted).

The Court ordered Plaintiff to

return the forms within 60 days of September 9, 2022.

Id. at 9.

“[I]f Plaintiff fails to properly serve the United States, and
file proof of such service, within the timeframe set forth
above, this action will be dismissed against all Defendants
without prejudice.”
November 8, 2022.

Id. at 10.

This 60-day period expired

Plaintiff has not returned any USM-285 Forms

to the Clerk’s Office.
“Unless service is waived, proof of service must be made to
the court.”

Fed. R. Civ. P. 4(l)(1).

any proof of service on the docket.

Plaintiff has not filed
“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 that defendant or
order that service be made within a specified time.”
Civ. P. 4(m).

Fed. R.

Plaintiff has been given significantly more than

90 days to serve Defendants.

The Court has sent USM-285 Forms

to Plaintiff on multiple occasions and provided instructions on
how to complete the forms.

It notified Plaintiff on September

9, 2022 that failure to return the final set of forms within 60
days would result in dismissal for failure to serve.
24.

ECF No.

Despite the efforts of the Court to assist Plaintiff,

Plaintiff has failed to properly serve Defendants.

7

Accordingly,

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the complaint will be dismissed without prejudice.

Fed. R. Civ.

P. 4(m).
An appropriate Order follows.

Dated: January 17, 2023
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

8