Tucker v. Holder et al

Filing 32

Order granting Defendants' Motion to dismiss case. (Related Doc # 26 ) This matter is dismissed without prejudice. Judge John R. Adams on 4/25/11.(K,C)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
MELVIN TUCKER,
Plaintiff,
vs.
ERIC HOLDER, et al.,
Defendants.

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CASE NO. 4:10CV734
JUDGE JOHN R. ADAMS

ORDER
[Resolving Doc. 26]

This matter is before the Court on Defendants motion to dismiss this case. Doc. 26. For
the reasons set forth below, Defendants’ motion is GRANTED and the complaint is
DISMISSED.
I.

Procedural Facts

Plaintiff filed his complaint on April 8, 2010. In his complaint, he asserted that he was
attacked by an inmate who suffered from a mental illness. On August 24, 2010, this Court
dismissed without prejudice Plaintiff’s claims against Attorney General Eric Holder, Assistant
Warden Lorenzini, Assistant Warden Bill Story, Captain Fitzgerald, and Lieutenant Butts.
Remaining were Plaintiffs claims as to Warden Shartle and Dr. Clifford. Plaintiff executed
service upon Dr. Clifford and Warden Shartle.
On January 6, 2011, the Court held a telephonic case management conference, at which
Plaintiff and an Assistant United States Attorney participated. At this conference, Plaintiff was
informed that he had failed to properly serve the Government. Notably, he failed to provide the
U.S. Attorney with notice of this case. Fed.R.Civ.P. 4(i)(1)(A)(i) and (ii). As a result, on January
7, 2011, the Court ordered Plaintiff, pursuant to Fed.R.Civ.P 4(i) to serve the United States no
later than February 7, 2011. Doc. 19. On February 15, 2011, Plaintiff perfected service on the

U.S. Attorney General. On February 14, 2011, Defendants filed their Notice of Failure to Serve
United States of America. Doc. 22. Plaintiff responded to this notice. On March 8, 2011, the
Defendants filed a notice of Substitution of United States as a Party Defendant. Doc. 25. Also on
March 8, 2011, the Defendants filed the instant motion to dismiss. Doc. 26. Plaintiff responded
and the Defendants replied.
II.

Analysis
a. Failure to perfect service.

To serve the United States, its agencies, corporations, officers, or employees 1, Rule
4(i)(1) of the Federal Rules of Civil Procedure provides that a party must:
(A) (i) deliver a copy of the summons and of the complaint to the
United States attorney for the district where the action is brought—
or to an assistant United States attorney or clerical employee whom
the United States attorney designates in a writing filed with the
court clerk—or
(ii) send a copy of each by registered or certified mail to the civilprocess clerk at the United States attorney’s office;
(B) send a copy of each by registered or certified mail to the
Attorney General of the United States at Washington, D.C.; and
(C) if the action challenges an order of a nonparty agency or
officer of the United States, send a copy of each by registered or
certified mail to the agency or officer.
Fed.R.Civ.P. 4(i)(1)(A)-(C).
Plaintiff has failed to comply with Fed.R. 4(i)(1)(A)(i) or (ii). He has presented no
evidence to suggest that he sent anyone at the United States Attorney’s office for the Northern
District of Ohio a copy of the summons and of the complaint. As such, he has failed to perfect
service upon the United States and therefore has failed to invoke this Court’s jurisdiction over
the Defendants.
III.

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Conclusion

Warden Clifford and Dr. Shartle are United States employees.

The Defendant’s motion to dismiss is GRANTED. Accordingly, the Court concludes that
Plaintiff’s claims against the United States should be DISMISSED without prejudice.
Fed.R.Civ.P. 4(m) (stating in part that “[i]f a defendant is not served within 120 days after the
complaint is filed, the Court [] must dismiss the action without prejudice against that defendant
or order that service by made within a specified time.”).
IT IS SO ORDERED.
DATED: April 25, 2011

/s/ John R. Adams_________________
Judge John R. Adams
UNITED STATES DISTRICT COURT