Sweeting v. Noble Correctional Institution et al

Filing 24

REPORT AND RECOMMENDATIONS - It is RECOMMENDED that this action be dismissed for failure to effect service of process under Fed. R. Civ. P. 4(m). Objections to R&R due by 4/28/2014. Signed by Magistrate Judge Norah McCann King on 4/11/14. (jr1)

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

DEION L. SWEETING,
Plaintiff,
vs.

Civil Action 2:13-cv-941
Judge Graham
Magistrate Judge King

NOBLE CORRECTIONAL INSTITUTION,
et al.,
Defendants.

REPORT AND RECOMMENDATION
Plaintiff filed this action on September 23, 2013.
Doc. No. 1.

Complaint,

The handwritten Complaint names ten (10) individuals and

totals 91 pages with attached exhibits.

Id.

The docket reflects that

summons forms and Marshals’ service forms were mailed to plaintiff on
September 25, 2013.

In October 2013, the Court advised plaintiff

that, should he provide a copy of the Complaint, a summons and a
Marshals’ service form for each remaining defendant, the United States
Marshals Service would effect service of process on those defendants.
Order, Doc. No. 8.

In December 2013, the Court warned plaintiff that

the claims against any defendant not served with process within 120
days after the filing of the Complaint, i.e., January 23, 2014, may be
dismissed.

Order, Doc. No. 13 (citing Fed. R. Civ. P. 4(m)).

Thereafter, in a filing docketed the day after that deadline, but
apparently dated “1/16/14” by plaintiff, plaintiff alleged that
defendants had retaliated against him by interfering with his access

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to the courts in this litigation.

Notice, Doc. No. 18.

Construing

this filing as a motion for an extension of time, the Court noted that
it may extend the deadline for effecting service upon a showing of
good cause.

Order, Doc. No. 19, pp. 2-3 (quoting Fed. R. Civ. P. 4(m)

and Nafzinger v. McDermott Int’l, Inc., 467 F.3d 514, 521 (6th Cir.
2006)).

Although the Court was not persuaded that plaintiff had

established the necessary good cause, plaintiff was nevertheless
granted an additional month - until February 24, 2014 – in which to
effect service of process.

Id. at 3.

In extending the time for

service, the Court explicitly advised plaintiff that he “must provide
a copy of the Complaint (with attached exhibits), a summons and a
Marshals service form for each defendant.”
original).

Id. (emphasis in

The Court further advised that plaintiff’s failure to do

so by February 24, 2014 would result in the dismissal of the action,
without prejudice, for failure to effect timely service of process.
Id.
In a filing received by the Court shortly before that extended
deadline, plaintiff again complained that defendants had retaliated
against him by interfering with his access to the courts in this
litigation.

Doc. No. 20.

Plaintiff attached supporting documents

that purportedly established compliance with the service deadline.
Id. (attaching a letter addressed to the Clerk of this Court, dated
February 13, 2014, asking if the Clerk had received 13 copies of the
Marshals service form, 13 summonses and 13 copies of the Complaint
that had purportedly been mailed by plaintiff on January 22, 2014, and

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attaching a receipt (or “cash slip”) for postage in the amount of
$6.60 that purportedly reflected the postage costs associated with
this claimed mailing).

Id.1

In concluding that plaintiff had not

complied with the prior Order, Doc. No. 19, the Court observed that
the docket reflected several filings by plaintiff but did not reflect
the required service-related documents.

Order, Doc. No. 21, pp. 2-3.

Despite this non-compliance, the Court nevertheless granted plaintiff
one, final extension of time - until April 7, 2014 - in which to take
all action necessary to allow the United States Marshals Service to
effect service of process on each defendant.

Id. at 3.

The Court

reminded plaintiff “that he must provide a copy of the Complaint (with
attached exhibits), a summons and a Marshals service form for each
defendant.”

Id. (emphasis in the original).

The Court also advised

plaintiff that he had the option of amending the Complaint to reduce
the length of the pleading or the number of named defendants.
3 n.3.

Id. at

Plaintiff was further warned that his failure to take all

action necessary for service “by April 7, 2014 will result in the
dismissal of the action, without prejudice, for failure to effect
timely service of process.
deadline.”

There will be no further extension of this

Id. at 3 (emphasis in original).

Notwithstanding this warning, plaintiff again sought yet another
extension of time in which to effect service of process.

Doc. No. 22.

In his motion docketed on March 31, 2014, plaintiff complained that he

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The cash slip indicated that the mailing was mailed by the United States
Postal Service on “1-22-14,” id.; a filing by plaintiff was docketed on
January 24, 2014. Notice, Doc. No. 18.

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lacked money to pay for the copies necessary to effect service of
process on all defendants; that a substitute prison librarian had
limited time to assist in plaintiff’s institution; that defendant Grey
blocked his access to the courts by refusing to provide free
photocopying services to plaintiff; and that plaintiff had been
transferred, without reason, to a lower-paying job, effectively
depriving him of funds necessary to effect service.

Id.

In denying

the requested extension of time, the Court concluded that plaintiff
had failed to establish the required good cause under Fed. R. Civ. P.
4(m).

Opinion and Order, Doc. No. 23, pp. 4-5.

More specifically,

the Court noted that the right of access to the courts does not
entitle a prisoner to free access to photocopying services and that
the Court had previously advised plaintiff that he could amend the
Complaint to reduce the length of the pleading and/or the number of
named defendants.

Id.

The Court also examined and rejected

plaintiff’s accusations against defendant Grey, finding, inter alia,
that plaintiff’s own submission established that defendant Grey
provided plaintiff with legal kits and free postage for legal
materials and, further, that defendant Grey had offered to provide
paper to plaintiff, an offer that plaintiff rejected.

Id. at 5.

Plaintiff’s vague complaints that a prison librarian had limited time
to assist him did not explain why, in approximately six months,
plaintiff had failed to provide the requisite number of copies of the
Complaint to effect service of process on each of the 10 defendants
named by plaintiff.

Id.

The Court further concluded that plaintiff’s

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allegation that he had been transferred to a lower-paying job in
January 2014 did not explain why he had failed to provide the
necessary number of copies when he occupied the higher-paying
position.

Id.

In denying plaintiff’s most recent motion for

extension of time, the Court reminded plaintiff that the deadline to
effect service of process on each defendant remained April 7, 2014 and
that he must provide a copy of the Complaint (with attached exhibits),
a summons and a Marshals service form for each defendant.

Id. at 6.

The Court warned plaintiff that his “failure to do so by April 7, 2014
will result in dismissal of this action, without prejudice, for
failure to effect timely service of process.
extension of this deadline.”

There will be no further

Id. (emphasis in original). To date, the

Court has received nothing further from plaintiff.
This case has now been pending for more than six months. Although
plaintiff has been advised on multiple occasions of the need to effect
service of process – and of the steps necessary in order to do so and although plaintiff has been granted numerous extensions of time in
which to effect service of process, plaintiff has nevertheless failed
to take the action necessary to permit the United States Marshals
Service to effect timely service of process on each defendant.
WHEREUPON, it is RECOMMENDED that this action be dismissed for
failure to effect service of process under Fed. R. Civ. P. 4(m).
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,

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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).

April 11, 2014

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

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