Enyart v. Karnes et al

Filing 187

REPORT AND RECOMMENDATION that re 180 motion to dismiss for lack of jurisdiction and in the alternative for summary judgment be denied. Objections to R&R due by 5/24/2013. Signed by Magistrate Judge Norah McCann King on 5/07/13. (rew)

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

RICHARD E. ENYART, Jr.,
Plaintiff,

Case No. 2:09-cv-687
Judge Smith
Magistrate Judge King

vs.

FRANKLIN COUNTY, et al.,
Defendants.

REPORT AND RECOMMENDATION
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.
This matter is now before the Court on defendant Daniel Thacker’s
Defendant’s Motion to Dismiss and In the Alternative for Summary
Judgment, Doc. No. 180 (“Motion to Dismiss”).

For the reasons that

follow, it is RECOMMENDED that the Motion to Dismiss be DENIED.
I.

BACKGROUND
This case has a lengthy and convoluted procedural history.

As it

relates to the instant defendant,1 plaintiff initiated this action on
August 6, 2009, with the filing of the original Complaint, which named
as defendants Sheriff Jim Karnes2 and two “John Does.”
No. 2.

Complaint, Doc.

Thereafter, plaintiff moved for leave to amend in order to add

1

The only other remaining defendant is Deputy Dan
Recommendation, Doc. No. 165 (noting, inter alia,
Civil Relief Act, 50 U.S.C. App. § 521, offers to
certain protections); Opinion and Order, Doc. No.
Report and Recommendation).
2
Sheriff Jim Karnes is now deceased.

1

Waldren. See Report and
that the Servicemembers
members of the military
168 (adopting and affirming

four new defendants, including Deputy Daniel Thacker whom plaintiff
intended to name as the “John Doe 2” referred to in the Complaint.
Doc. No. 42, p. 2.

The motion was not accompanied by a proposed

amended complaint.

Id.

Notwithstanding defendant Sheriff Karnes’s

opposition to this motion, Doc. No. 47, plaintiff filed, without leave
of Court, an amended complaint effecting these additions.

Amended

Complaint, Doc. No. 57.
Recognizing the ambiguity in the record, the Court, on November
10, 2010, ordered plaintiff to file a new amended complaint that
expressly identified, inter alios, Deputy Thacker as a defendant.
Order and Report and Recommendation, Doc. No. 69.

The Court also

ordered plaintiff to submit service papers for all defendants except
defendant Karnes and directed the United States Marshal Service to
effect service of process upon plaintiff’s submission of those
documents.

Id.

Thereafter, plaintiff filed the Amended Complaint, Doc. No. 76,
and submitted, inter alia, a completed summons directed to defendant
Thacker at the Franklin County Corrections Center I (“FCCCI”).

On

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

Doc. No. 88.

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.
No. 96.

Order and Report and Recommendation, Doc.

The Clerk certified that a copy of the Amended Complaint had

been sent by regular mail to defendant Thacker at FCCCI.
2

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.

After unsuccessful attempts to locate defendant Thacker and an
extension of time in which to serve this defendant, see, e.g., Opinion
and Order, Doc. No. 131 and Opinion and Order, Doc. No. 171,3 the Court
ultimately directed the United States Marshal Service to take
“reasonable steps to locate defendant Thacker’s current address . . .
and to attempt to perfect service of process.”
Doc. No. 171, pp. 10-11.

Opinion and Order,

The Court further directed the Clerk “to

furnish to the United States Marshal Service a summons and copy of the
Amended Complaint, Doc. No. 76, for service on defendant Thacker.”
Id. at 10.

In the event that defendant Thacker’s personal address was

located, the Court also directed the Marshal Service to file proof of
service under seal.

Id. at 11.

On October 23, 2012, proof of service on defendant Thacker was
filed under seal.

Doc. No. 174.

The Court issued a scheduling order

requiring, inter alia, that all discovery be completed by June 30,
2013 and that dispositive motions be filed no later than July 31,
2013.

Scheduling Order, Doc. No. 178, pp. 1-2.
Thereafter, defendant Thacker filed the Motion to Dismiss,

arguing that service of process was insufficient or, in the
alternative, contending that he is entitled to summary judgment.
Plaintiff has opposed the Motion to Dismiss and, in response to
defendant Thacker’s request for summary judgment, plaintiff asks for

3

After having been dismissed, Opinion and Order, Doc. No. 162, defendant
Thacker was later reinstated as a party defendant. Opinion and Order, Doc.
No. 171.

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an extension of time in which to conduct discovery pursuant to Fed. R.
Civ. P. 56(d).4

Plaintiff’s Memorandum in Opposition to the

Defendant's Motion to Dismiss and/or Summary Judgment (#180), Doc. No.
183 (“Memo. in Opp.”).

With the filing of Defendant Daniel Thacker’s

Reply to Plaintiff’s Memorandum in Opposition to Defendant’s Motion to
Dismiss and in the Alternative for Summary Judgment, Doc. No. 185
(“Reply”), this matter is ripe for resolution.
II.

STANDARD OF REVIEW
A.

Rule 12(b)(5) Motion to Dismiss

Defendant Thacker seeks dismissal of the claims against him
because, he argues, service of process was defective. Rule 4(c) of the
Federal Rules of Civil Procedure requires that a plaintiff serve a
defendant with a summons and a copy of the complaint in timely
fashion.

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

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

defendant must ordinarily be served with process within 120 days of
the filing of the complaint).

“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).

The plaintiff “bears the burden of

perfecting service of process and showing that proper service was
made.”

Sawyer v. Lexington-Fayette Urban County Gov’t, No. 00-6097,

18 Fed. Appx. 285, at *287 (6th Cir. Aug. 21, 2001)(citing Byrd v.
Stone, 94 F.3d 217, 219 (6th Cir. 1996)).

See also McGath v. Hamilton

Local Sch. Dist., 848 F. Supp. 2d 831, 836 (S.D. Ohio 2012) (“When

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Plaintiff erroneously refers to Fed. R. Civ. P. 56(f), which is an earlier
version of the rule.

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service of process is challenged, the burden rests with the plaintiff
to establish that service is properly made.”).
Motions to dismiss under Fed. R. Civ. P. 12(b)(5) need not be
treated as motions for summary judgment even if they are supported by
affidavits.

See, e.g., Baxter Bailey Invs., LLC v. Harrison Poultry,

Inc., No. 11-3116, 2012 U.S. Dist. LEXIS 131167, at *4-5 (E.D. Tenn.
Sept. 14, 2012) (“To assist the court in determining factual issues,
the ‘[p]arties may submit affidavits and exhibits with a motion to
dismiss under Rule 12(b)(5).’”) (quoting Travelers Cas. & Sur. Co. v.
Telstar Constr. Co., 252 F. Supp. 2d 917, 922 (D. Ariz. 2003)); Metro.
Alloys Corp. v. State Metals Indus., Inc., 416 F. Supp. 2d 561, 563
(E.D. Mich. 2006) (“Facts as attested to in uncontroverted affidavits
may be considered in ruling on a motion to dismiss under Rule
12(b)(5).”); 5A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL
PRACTICE AND PROCEDURE § 1366 (2d ed.) (stating that the rule
converting motions to dismiss into motions for summary judgment
applies only to Rule 12(b)(6) motions because “[t]here never has been
any serious doubt as to the availability of extra-pleading material”
as to motions under Rules 12(b)(1) through 12(b)(5) and 12(b)(7),
because motions under those rules “only challenge the propriety of the
court adjudicating the claim before it and do not reach the validity
of the claim itself”).
B.

Summary Judgment

Defendant Thacker also argues, in the alternative, that he is
entitled to summary judgment on plaintiff’s claims.

Summary judgment

is appropriate if the record establishes that there exists no genuine
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issue of material fact.

Rule 56(a), Fed. R. Civ. Pro.

Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

Anderson v.

The mere existence

of a scintilla of evidence in support of the opposing party’s position
will be insufficient; there must be evidence on which the jury could
reasonably find for the opposing party.

Anderson, 477 U.S. at 251.

See also Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
III. DISCUSSION
Defendant Thacker first argues that the Marshal’s service of
process on him was insufficient because (1) it was not effected within
120 days of the filing of the original Complaint in violation of Fed.
R. Civ. P. 4(m), and (2) he was not served with a copy of the Amended
Complaint.

Motion to Dismiss, p. 6; Reply, pp. 1-2. Defendant

Thacker’s arguments are not well-taken.
First, the procedural history detailed supra establishes that the
Court extended the time for service of process on this defendant.
also Opinion and Order, Doc. No. 171.

See

Second, the assertion that

defendant Thacker was not served with a copy of the original Complaint
or Amended Complaint, see Motion to Dismiss, p. 6 (citing Affidavit of
Daniel Thacker, ¶¶ 2-3 (“Thacker Affidavit”), attached thereto, is not
uncontroverted. As noted supra, the Court expressly directed the Clerk
“to furnish to the United States Marshal Service a summons and copy of
the Amended Complaint, Doc. No. 76, for service on defendant Daniel
Thacker.”

Doc. No. 171, p. 10.

The docket indicates that the Clerk

complied with that directive. Docket Entry, Doc. No. 171 (“Summons and
copies as addressed in the Order sent to the USMS for service.”)

The

Marshal’s return of service documents “Personal Service mandated by
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Order and Opinion of the U.S. District Court, Southern District of
Ohio[.]”

Doc. No. 174, p. 3.

In short, the record reflects, at most,

a disputed issue of fact as to whether or not defendant Thacker was
served with a copy of the Amended Complaint in October 2012.

Based on

this record, the Court cannot conclude that service of process
effected in October 2012 was insufficient.
Defendant Thacker moves, in the alternative, for summary
judgment, in response to which plaintiff requests time to conduct
discovery pursuant to Fed. R. Civ. P. 56(d).

Plaintiff specifically

asks that the Court defer considering the motion for summary judgment
until plaintiff has had the opportunity to conduct discovery.

Memo.

in Opp., p. 3.
Rule 56(d) of the Federal Rules of Civil Procedure establishes
the proper procedure to be followed when a party concludes that
additional discovery is necessary to respond to a motion for summary
judgment:
When Facts Are Unavailable to the Nonmovant. If a
nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to
justify its opposition, the court may:
(1)
(2)
to take
(3)

defer considering the motion or deny it;
allow time to obtain affidavits or declarations or
discovery; or
issue any other appropriate order.

Fed. R. Civ. P. 56(d).

The affidavit or declaration required by the

rule must “indicate to the district court [the party’s] need for
discovery, what material facts [the party] hopes to uncover, and why
[the party] has not previously discovered the information.”

Cacevic

v. City of Hazel Park, 226 F.3d 483, 488 (6th Cir. 2000) (citing
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Radich v. Goode, 886 F.2d 1391, 1393-94 (3d Cir. 1989)).

A motion

under Rule 56(d) may be properly denied where the requesting party
“‘makes only general and conclusory statements [in its affidavit]
regarding the need for more discovery and does not show how an
extension of time would have allowed information related to the truth
or falsity of the [information sought] to be discovered,’” Ball v.
Union Carbide Corp., 385 F.3d 713, 720 (6th Cir. 2004) (quoting
Ironside v. Simi Valley Hosp., 188 F.3d 350, 354 (6th Cir. 1999)), or
where the affidavit “lacks ‘any details’ or ‘specificity.’”

Id.

(quoting Emmons v. McLaughlin, 874 F.2d 351, 357 (6th Cir. 1989)).
Finally, whether or not to grant a request for additional discovery
falls within the trial court’s discretion.

Egerer v. Woodland Realty,

Inc., 556 F.3d 415, 426 (6th Cir. 2009).
Here, plaintiff attached an affidavit, see Exhibit A, Affidavit
of Richard E. Enyart Jr. (“Enyart Affidavit”), attached to Memo. in
Opp., but it does not address the specific discovery that plaintiff
requires, nor does it explain why plaintiff has not yet obtained that
discovery.

Plaintiff’s failure in this regard is particularly curious

in light of the Court’s prior orders addressing similar deficiencies
in his earlier requests for additional discovery.

See, e.g., Opinion

and Order, Doc. No. 70; Opinion and Order, Doc. No. 92.

Nevertheless,

under the circumstances of this particular case, including the fact
that the discovery completion date has not yet passed, plaintiff’s
request to postpone ruling on defendant Thacker’s request for summary
judgment is well-taken.

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However, and notwithstanding this Court’s present willingness to
overlook this pro se plaintiff’s failure to comply with Rule 56(d),
plaintiff is specifically ADVISED that he must comply with that rule,
if applicable, in all future filings.

Stated differently, the Court

will not overlook any failure on plaintiff’s part to comply with the
requirements of Rule 56(d) should plaintiff request another extension
of time to respond to a renewed motion for summary judgment based on a
need for additional discovery.

See, e.g., Cacevic, 226 F.3d at 488

(“The importance of complying with Rule 56(f) [now Rule 56(d)] cannot
be overemphasized.”).
Plaintiff is FURTHER ADVISED that any future request for
discovery under Rule 56(d) should be filed as a separate motion rather
than buried in a response to a dispositive motion.

Filing a separate

motion ensures that the request is added to the Court’s pending
motions list and eliminates confusion during the briefing period.
Finally, the Court notes that the present pretrial schedule
requires that all discovery be completed by June 30, 2013 and that
dispositive motions, if any, be filed no later than July 31, 2013.
Scheduling Order, Doc. No. 178, pp. 1-2.

The parties are REMINDED

that the discovery completion date requires that discovery requests be
made sufficiently in advance to permit timely response by that date.
Id. at 1.

The parties are FURTHER REMINDED that any request to modify

the present pretrial schedule will require a showing of good cause.
See Fed. R. Civ. P. 16(b)(4).
WHEREPON, it is RECOMMENDED that defendant Daniel Thacker’s
Defendant’s Motion to Dismiss and In the Alternative for Summary
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Judgment, Doc. No. 180, be DENIED.

Specifically, it is RECOMMENDED

that defendant Thacker’s motion to dismiss pursuant to Fed. R. Civ. P.
12(b)(5) be DENIED and that his request for summary judgment be DENIED
without prejudice to renewal.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

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Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the right to
de novo review by the District Judge and of the right to appeal the
decision of the District Court adopting the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

May 7, 2013

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

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