Enyart v. Karnes et al

Filing 162

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Signed by Judge George C Smith on 6-11-12. (ga)

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 an Order and Report and Recommendation issued January 11, 2012,
the United States Magistrate Judge recommended that the claims
against defendant Daniel Thacker be dismissed for failure to effect
service of process.

Doc. No. 147.

This matter is now before the

Court on plaintiff’s objections, Doc. No. 156, to that Order and
Report and Recommendation which the Court will consider de novo.

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U.S.C. § 636(b); Fed. R. Civ. P. 72(b).
As way of background, this action was filed on August 6, 2009,
naming as defendants Sheriff Jim Karnes and two “John Does.”
Complaint, Doc. No. 2.

Thereafter, on November 24, 2010, plaintiff

filed an amended complaint naming, inter alios, Daniel Thacker as a

defendant.

Amended Complaint, Doc. No. 76.1

defendant Thacker at FCCCI. Doc. No. 83.

A summons was issued to

On February 25, 2011, the

summons was returned unexecuted with the notation “refused.”
No. 88.

Doc.

On April 26, 2011, the Court, noting that defendant Thacker

and other named defendants had not yet been served, directed the
Clerk’s Office to effect service of process by ordinary mail,
consistent with S.D. Ohio Civ. R. 4.2(c), on, inter alios, defendant
Thacker. Order and Report and Recommendation, Doc. No. 96.

The Clerk

certified that a copy of the Amended Complaint had been sent by
regular mail to defendant Thacker at FCCCI. Doc. No. 97.

That

summons was returned unexecuted with the notation that defendant
Thacker “has not worked here in a couple of years.”

Doc. No. 108-1.

Upon motion and a showing of good cause, this Court previously
granted plaintiff an extension of time to serve defendant Thacker.
Opinion and Order, Doc. No. 131, p. 4.

See also Fed. R. Civ. P. 4(m)

(providing that a plaintiff must serve defendants within 120 days of
the filing of the complaint).

The Court also granted plaintiff’s

motion to compel and ordered defendant Mandy Miller to file under
seal a current address for defendant Thacker, if that address is
available to her.

Opinion and Order, Doc. No. 131, p. 4.

On September 28, 2011, defendant Miller filed a notice reporting
that “she does not have any knowledge of where Thacker may be found.”
Doc. No. 134.

In response, plaintiff argued that defendant Miller’s

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Prior to that time, plaintiff filed a motion for leave to amend the
complaint to assert claims against defendant Thacker, Plaintiff’s Motion for
Leave to File an Amended Complaint, Doc. No. 42, and an amended complaint that
named Daniel Thacker as a defendant. Amended Complaint, Doc. No. 57.

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professed lack of knowledge was incredible and urged this Court to
compel defendant Miller to disclose defendant Thacker’s current
address or face sanctions.

Doc. No. 142.

The Magistrate Judge,

noting that defendant Miller represented to the Court, through
counsel, that she does not have the requested information, concluded
that the Court could compel nothing more.
Recommendation, p. 2.

Order and Report and

The Magistrate Judge also concluded that

plaintiff failed to establish good cause for another extension of
time because not only did he not seek additional time in which to
serve defendant Thacker, he failed to represent that another
extension of time would permit him to effect proper service of
process.

Id. at 2-3.

The Magistrate Judge therefore recommended

that the claims against defendant Daniel Thacker be dismissed for
failure to effect service of process.

Id. at 3.

In objecting to this recommendation, plaintiff argues that Rule
4(m) of the Federal Rules of Civil Procedure requires the Court to
extend the time for service for “an appropriate period,” which
plaintiff understands to mean “that the extension of time [that
plaintiff previously requested] extends until service is effected.”
Doc. No. 156, pp. 1-2.

Without citing to any case authority,

plaintiff contends that “it seems reasonable that the ‘appropriate
period,’ according to Rule 4(m), would be whatever time period it
takes to effect said service.”

Id. at 2.

Therefore, plaintiff

argues, his failure to ask for additional time is not fatal.

Id.

However, if necessary, plaintiff seeks leave to file another motion
for an extension “to extend the time period to effect service to be

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whatever period of time it takes to effect service” or “to extend the
period to a specific milestone or date[.]”
Plaintiff’s argument misses the mark.

Id.
He overlooks or

disregards the requirement under Rule 4(m) that he must establish
good cause for failing to effect service of process on defendant
Thacker.

More specifically, that rule provides that, if service is

not effected within 120 days of the filing of the complaint, the
Court “must dismiss the action without prejudice against [the]
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.”
P. 4(m).

Fed. R. Civ.

Therefore, plaintiff, as the party opposing dismissal of

his claims against defendant Thacker, has the burden of establishing
good cause, which “‘necessitates a demonstration of why service was
not made within the time constraints.’”

Nafziger v. McDermott Int'l,

Inc., 467 F.3d 514, 521 (6th Cir. 2006) (quoting Habib v. GMC, 15
F.3d 72, 73 (6th Cir. 1994)).

Determining whether good cause has

been shown is left to the discretion of the district court.

Id.

See

also McCombs v. Granville Exempted Vill. Sch. Dist., No.
2:07-cv-00495, 2009 U.S. Dist. LEXIS 14044, at *16-18 (S.D. Ohio Feb.
24, 2009) (declining to grant discretionary extension under Rule 4(m)
to plaintiffs who, without good cause shown, sought leave to serve
defendants approximately two years after lawsuit initiated).
Here, plaintiff has still failed to establish good cause in his
current objections even after the Magistrate Judge pointed out this
deficiency when recommending dismissal of the claims against

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defendant Thacker.

Order and Report and Recommendation, pp. 2-3

(“[P]laintiff offers no other specific plans for obtaining defendant
Thacker’s current address and describes no additional steps he has
taken to secure that address following defendant Miller’s notice that
she does not have the address.”).

Instead, plaintiff speculates that

defendant Miller, who has since been dismissed as a defendant,
Opinion and Order, Doc. No. 148; Opinion and Order, Doc. No. 160,
“should be able to access department records, which would certainly
contain Thacker’s last known address.”

Doc. No. 156, pp. 2.

The

Court agrees with the Magistrate Judge that, notwithstanding
plaintiff’s unsupported speculation to the contrary, the record
presents no reason to suggest that former defendant Miller can
provide defendant Thacker’s current address.

As noted by the

Magistrate Judge, the Court cannot compel defendant Miller to produce
information that she does not possess.
Plaintiff also asserts that defendant Thacker “has obviously
been served” because counsel has “filed numerous pleadings” on this
defendant’s behalf and because – speculating once again – that
defendant Thacker is evading service of process.

Doc. No. 156, p. 4.

Plaintiff also argues that his “pro se, indigent, imprisoned” status,
combined with his prior efforts to effect service, is sufficient to
extend “the time to effect service, until such time as all requested
means to obtain the defendant’s address [through defendant Miller]
have been exhausted.”

Id. at 3-4.

However, extensions of time under

Rule 4(m) are not granted without limit or condition.

See, e.g.,

Turner v. Grant County Det. Ctr., No. 05-148-DLB, 2007 U.S. Dist.

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LEXIS 34290, at *8 (E.D. Ky. May 10, 2007) (“While this Court has the
discretion to fashion appropriate relief for failing to effectuate
service, exercising that discretion necessarily means that relief in
the form of an extension is not afforded as a matter of course, else
there would be no reason to have Rule 4(m) with its time limit for
service”).

Moreover, plaintiff’s pro se status does not “relieve

[him] of [his] obligation to properly effect service of the summons
and complaint as required by the Federal Rules of Civil Procedure.”
Sayyah v. Brown Cnty. Bd of Comm’rs, No. 1:05-CV-16, 2005 U.S. Dist.
LEXIS 15225, at *17 (S.D. Ohio July 27, 2005).
This case has been pending for almost three years and
plaintiff’s claims against defendant Thacker have been pending for
almost two years.

Yet plaintiff offers no specific plans for

effecting service of process on this defendant.

Under these

circumstances, the Court concludes that plaintiff has failed to
establish good cause for yet another extension of time to effect
service of process on defendant Thacker.

Cf. McCombs, 2009 U.S.

Dist. LEXIS 14044, at *16-18.
Having carefully reviewed the January 11, 2012 Order and Report
and Recommendation, Doc. No. 147, and plaintiff’s objections, Doc.
No. 156, the Court concludes that plaintiff’s objections to the Order
and Report and Recommendation are without merit and they are
therefore DENIED.

The January 11, 2012 Order and Report and

Recommendation, Doc. No. 147, is hereby ADOPTED and AFFIRMED.
Thacker is DISMISSED as a defendant.

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Daniel

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

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