Enyart v. Karnes et al

Filing 152

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Signed by Judge George C Smith on 1/18/12. (lvw1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

RICHARD E. ENYART, JR.,
Plaintiff,
vs.

Civil Action 2:09-CV-687
Judge Smith
Magistrate Judge King

FRANKLIN COUNTY, et al.,
Defendants.

OPINION AND ORDER
Plaintiff, a state inmate proceeding without the assistance of
counsel, brings this action under 42 U.S.C. § 1983, alleging that he
was denied due process while detained in the Franklin County jail.
In a Report and Recommendation issued September 19, 2011, the United
States Magistrate Judge recommended that Defendant Daniel Waldren’s
Motion to Dismiss For Failure of Service of Process, Doc. No. 116
(“Motion to Dismiss”), be denied without prejudice.
Recommendation, Doc. No. 129.

Report and

This matter is now before the Court on

plaintiff’s objections, Doc. No. 140, to that Report and
Recommendation, which the Court will consider de novo.

28 U.S.C. §

636(b); Fed. R. Civ. P. 72(b).
As way of background, plaintiff initiated this action on August
6, 2009, by the filing of the original Complaint, which named as
defendants Sheriff Jim Karnes and two “John Does.”
No. 2.

Complaint, Doc.

Later, plaintiff filed the Amended Complaint, which named

defendant Daniel Waldren as a defendant.

Doc. No. 76.

Plaintiff

also submitted a completed summons directed at defendant Waldren at
his place of employment, Franklin County Corrections Center I
(“FCCCI”) at 370 South Front Street in Columbus.

Doc. No. 74.

On

February 25, 2011, the summons was returned unexecuted with the
notation “refused.”

Doc. No. 87.

In moving to dismiss the claims against him, defendant Waldren
submits evidence that he “was not at 370 S. High Street on February
16, 2011 as the day was one of his regularly scheduled days off” and
that he did not “refuse” service.

See Affidavit of Major Stephanie

Klumpp, ¶¶ 4-5, attached as Exhibit A to Motion to Dismiss (“Klumpp
Affidavit”).

The Magistrate Judge noted that while Major Klumpp

averred that defendant Waldren was not at “370 S. High Street” on the
day service was attempted, the summons was addressed to defendant
Waldren at “370 South Front Street.”
(citing Doc. Nos. 74, 87, 97).

Report and Recommendation, p. 5

The Magistrate Judge concluded that

this factual inconsistency, even if Major Klumpp erroneously referred
to High Street instead of Front Street in her affidavit, precluded a
finding that defendant Waldren was not at 370 South Front Street on
the day that service of process was attempted.

Id.

Therefore, the

Magistrate Judge recommended that defendant Waldren’s Motion to
Dismiss be denied without prejudice to renewal.

Id.

The heart of plaintiff’s objection to this recommendation is
that he believes that effecting proper service of process on
defendant Waldren is irrelevant or unnecessary because plaintiff
thinks that this defendant already has received notice of this
litigation.

Doc. No. 140.

Specifically, plaintiff contends that

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“any minor deficiencies in service of process as asserted by the
defendants [sic] counsel are clearly erroneous where the defendant
[Daniel Waldren] could reasonably be found to have had actual notice
of the lawsuit.”

Id. at 7.

While plaintiff cites to cases outside

of this circuit, id. at 2-4, 6-7 (citing, inter alia, Santiago v.
C.O. Campisi Shield No. 4592, 91 F. Supp.2d 665 (S.D. N.Y. 2000)), he
does not provide any controlling authority within the United States
Court of Appeals for the Sixth Circuit to support his position that
defendant Waldren’s purported notice of the lawsuit is sufficient to
waive any deficiencies in service.
Moreover, plaintiff, by acknowledging deficiencies in service,
apparently concedes that defendant Waldren was not properly served.
“Due process requires proper service of process for a court to have
jurisdiction to adjudicate the rights of the parties.”

O.J.

Distrib., Inc. v. Hornell Brewing Co., Inc., 340 F.3d 345, 353 (6th
Cir. 2003).

As the Report and Recommendation correctly noted,

plaintiff has the burden of perfecting service and establishing that
he effected proper service.

Report and Recommendation, p. 3.

However, notwithstanding plaintiff’s apparent concession now (and the
factual inconsistency created by the Klumpp Affidavit), the Court
concludes that it is better to err on the side of caution.

To that

end, the Court agrees with the Magistrate Judge that the question of
whether dismissal under Fed. R. Civ. P. 12(b)(5) is appropriate
should be decided through a renewed motion to dismiss.
The Court finds the objections to the Report and Recommendation,
Doc. No. 140, without merit and they are therefore DENIED.
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The

Report and Recommendation is hereby ADOPTED and AFFIRMED.

Defendant

Waldren’s motion to dismiss, Doc. No. 116, is denied without
prejudice to refiling.1

s/George C. Smith
George C. Smith, Judge
United States District Court

1

The Court notes that defendant Waldren has already filed another motion
to dismiss. Doc. No. 135.

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