Estate of Martie Clark et al v. Sickman et al

Filing 9

ORDER adopting Report and Recommendation re 5 Report and Recommendation denying 3 Motion for Order to Direct Service by USMS. Signed by Judge Michael R. Barrett on 11/5/15. (ba)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
ESTATE OF MARIE CLARK, et al.,

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Plaintiffs,
vs.
HAMILTON COUNTY, et al.,
Defendants.

CASE NO. 1:15-cv-512

Judge Michael R. Barrett

ORDER
This matter is before the Court on the October 27, 2015 Report and Recommendation of
the Magistrate Judge (Doc. 5), which recommends denying Plaintiffs’ Ex Parte Motion for Order
Directing U.S. Marshal’s Service to Serve Summons and First Amended Complaint Upon the
Defendants Pursuant to Rule 4(c)(3) of the Federal Rules of Civil Procedure (Doc. 3) because the
support for the motion was an improper request to proceed in forma pauperis as coadministrators purportedly on behalf of the estate. On November 4, 2015, Plaintiffs filed a
Notice Withdrawl of In Forma Pauperis Applications (Doc. 6) as well as Objections to the
Report and Recommendation (Doc. 7) in which Plaintiffs request that service by a U.S. Marshal
be granted as soon as possible given that they withdrew the in forma pauperis applications.
Federal Rule of Civil Procedure 4(c)(3) upon which Plaintiffs rely states:
At the plaintiff’s request, the court may order that service be made by a United
States marshal or deputy marshal or by a person specially appointed by the
court. The Court must so order if the plaintiff is authorized to proceed in
forma pauperis under 28 U.S.C. § 1915 or as a seaman under 28 U.S.C. §
1916.

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Plaintiffs’ original motion sought service by a U.S. Marshal solely on the basis that such service
is required when a plaintiff is authorized to proceed in forma pauperis. Given the Magistrate
Judge’s correct conclusion in the Report and Recommendation as well as the withdrawal of the
in forma pauperis applications, the grounds upon which the request was based no longer exist.
While the Court has the discretion to order service by the U.S. Marshal even when a plaintiff is
not proceeding in forma pauperis, Plaintiffs have provided the Court with no explanation as to
why it should do so in this case.
Accordingly, Plaintiffs’ objections (Doc. 7) are OVERRULED and the conclusion of the
Report and Recommendation (Doc. 5) is ADOPTED on different grounds.

Specifically,

Plaintiffs’ Motion (Doc. 3) is DENIED on the grounds that the Court is not required to order
service by the U.S. Marshal where, as here, Plaintiffs are not proceeding, and cannot proceed, in
forma pauperis and no reasons have provided at this time that warrant Court’s exercise of
discretion to order such service.
IT IS SO ORDERED.

s/Michael R. Barrett
JUDGE MICHAEL R. BARRETT
UNITED STATES DISTRICT COURT

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