Martin v. Cook et al

Filing 29

ORDER ADOPTING REPORT AND RECOMMENDATIONS, overruling Plaintiff's Objections. This case is DISMISSED WITHOUT PREJUDICE. Signed by Judge Algenon L. Marbley on 1/29/2015. (cw)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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

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Plaintiff,
v.
WARDEN COOK, et al.,
Defendant.

Case No. 2:13-cv-634
JUDGE ALGENON L. MARBLEY

Magistrate Judge Kemp

OPINON & ORDER
I.

INTRODUCTION

This matter is before the Court on consideration of Plaintiff’s Objections to Magistrates
Report of 10-6-14 (hereinafter “Plaintiff’s Objections”) (Doc. 28) to United States Magistrate
Judge Kemp’s Report and Recommendation (Doc. 26). The Magistrate Judge recommends that
the Court dismiss Plaintiff’s action without prejudice for failure to perfect service, as required by
Federal Rule of Civil Procedure 4(m). Upon independent review by this Court, and for the
reasons set forth below, the Court OVERRULES Plaintiff’s Objections and ADOPTS the
Magistrate Judge’s Report and Recommendation. This action is hereby DISMISSED.
II.

BACKGROUND

On May 12, 2014, Plaintiff filed this action, claiming a violation of his civil rights under
the First, Fourth, Fifth, Eighth, and Fourteenth Amendments during his time as a prisoner at
Grafton Correctional Institute. (Amended Complaint, Doc 22). Plaintiff did not serve his
Amended Complaint upon any of the Defendants within the 120-day deadline required by
Federal Rule of Civil Procedure 4(m).
Prior to filing his Amended Complaint, Plaintiff made a motion to waive service of
process of his initial Complaint. (Doc. 17). The Magistrate Judge denied Plaintiff’s motion,
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finding that free photocopies are not included in the right to proceed in forma pauperis. (Doc. 19
at 1). Instead, the Magistrate Judge informed Plaintiff that handwritten copies of his Complaint
would suffice to perfect service upon Defendants. The Magistrate Judge gave Plaintiff 30
additional days to supply the required copies to the U.S. Marshal for service. (Id.). Plaintiff was
warned of the possibility of dismissal if Defendants were not served in a timely manner. (Id.).
Plaintiff subsequently filed his Amended Complaint (Doc. 22), and failed to complete
service within 120 days. On September 17, 2014, the Magistrate Judge ordered Plaintiff to show
good cause as to why the action should not be dismissed for failure to perfect service. (Doc. 24
at 1). In response, Plaintiff objected, claiming that his indigency prevented him from
“effectuat[ing] service of process.” (Doc. 25 at 1). Finding indigency as insufficient grounds to
further extend the time for service, the Magistrate Judge recommends this action be dismissed
without prejudice. (Doc. 26 at 2). Plaintiff filed an objection to the Magistrate Judge’s Report
and Recommendation. (Doc. 28).
III.

LAW AND ANALYSIS

The Court has conducted a de novo review of the record in this case, as required by 28
U.S.C. § 636(b) and the Federal Rules of Civil Procedure 72(b). For the reasons detailed in the
Magistrate Judge’s Report and Recommendation, Plaintiff’s arguments are not persuasive. The
Federal Rules of Civil Procedure require a plaintiff to serve his complaint “within 120 days after
the complaint is filed.” Fed. R. Civ. P. 4(m). The Rule further directs the Court to “dismiss the
action without prejudice . . . [b]ut if the plaintiff shows good cause for the failure, the court must
extend the time for service.” Id.
Once 120 days passed after Plaintiff filed his Amended Complaint, the Magistrate Judge
issued an order for Plaintiff to show good cause as to why the action should not be dismissed.
(Doc. 24 at 1). A plaintiff may demonstrate good cause by “show[ing] he/she made a reasonable
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and diligent effort to effect service.” Habib v. General Motors Corp., 15 F.3d 72, 74 (6th. Cir.
1994) (citing Electrical Supply Co. v. Road & Ranch Supply, Inc., 967 F.2d 309, 312 (9th Cir.
1992)). The service requirement “must be construed leniently with regard to pro se litigants.” Id.
In response to the Magistrate Judge’s order to show cause, Plaintiff objected, claiming
that his indigency prevented him from “effectuat[ing] service of process.” (Doc. 25 at 1).
Plaintiff’s response is insufficient to show good cause because he did not show that he has made
any effort to effect service, nor has he shown that he is entitled to further assistance from the
court in serving Defendants. As stated by the Magistrate Judge, “an inmate has neither a
constitutional nor a statutory right to free photocopies even if that inmate has been granted the
right to proceed in forma pauperis.” (Doc. 26 (citing Brown v. Voorhies, No. 2:07-cv-0013,
2007 WL 1726489, *1 (S.D. Ohio June 13, 2007), aff’d 2007 WL 3001384 (S.D. Ohio Oct. 11,
2007))). In the Magistrate Judge’s order responding to Plaintiff’s motion to waive service of
process due to indigency, (Doc. 17), Plaintiff was informed that handwritten copies would
suffice to perfect service. (See Doc. 19). Despite this fact, Plaintiff did not produce any
additional copies of his Complaint or Amended Complaint to perfect service, nor did Plaintiff’s
Objections state that he was making strides towards providing copies of his Amended Complaint
to Defendants.
The Court has the discretion to extend the time for service in the absence of good cause.
Osborne v. First Union Nat. Bank of Delaware, 217 F.R.D. 405, 407-08 (S.D. Ohio 2003) (citing
Stewart v. Tennessee Valley Authority, No. 99-5723, 2000 WL 1785749 (6th Cir. Nov. 21,
2000)). Because Plaintiff has not shown that he has taken any steps toward perfecting service
thus far, it is unlikely that extending the time will make him more likely to perfect service. Thus,

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the Court declines to exercise its discretion to give Plaintiff additional time to perfect service in
this case.
The Federal Rules direct that where service is not made within 120 days, the Court “must
dismiss the action without prejudice against the defendant or order that service be made within a
specified time.” Fed. R. Civ. P. 4(m). In failing to provide copies of his Amended Complaint to
the U.S. Marshals for service, Plaintiff did not perfect service within the 120-day limit of Federal
Rule of Civil Procedure 4(m). Further, given the opportunity, Plaintiff failed to show good cause
as to why the action should not be dismissed. For these reasons, Plaintiff’s action must be
dismissed without prejudice.
CONCLUSION
For all of the foregoing reasons, and for the reasons detailed in the Magistrate Judge’s
Report and Recommendation, Plaintiff’s Objections are OVERRULED. The Report and
Recommendation is ADOPTED and AFFIRMED. The case is DISMISSED WITHOUT
PREJUDICE.
This order hereby MOOTS: (1) Plaintiff’s Motion for Reconsideration of Order Dated
2/18/14, (Doc. 20); (2) Plaintiff’s Objections to Magistrates Arbitrary/Capricious/Abuse Dated
3/6/14 Received 3/14/14, (Doc. 21); and (3) Plaintiff’s Objection to Magistrate Order of 9/17/14
Received 9/30/14 at HCF, (Doc. 25).
IT IS SO ORDERED.
/s/Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT COURT
Dated: January 28, 2015

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