Sweeting v. Noble Correctional Institution et al
Filing
29
ORDER denying 3 Motion for TRO; denying 14 Motion for TRO; denying 16 Motion for Protective Order; denying 17 Motion to Amend/Correct; adopting Report and Recommendations re 24 Report and Recommendations. Signed by Judge James L Graham on 4/24/14. (ds)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Deion L. Sweeting,
Plaintiff,
v.
Case No. 2:13-cv-941
Noble Correctional Institution,
et al.,
Defendants.
ORDER
Plaintiff filed this civil rights action against the Noble
Correctional Institution and ten individual defendants on September
23, 2013.
The complaint, including attached exhibits, is ninety-
one pages long.
On November 21, 2013, this court adopted the
October 29, 2013, report and recommendation of the magistrate judge
and dismissed the claims against the Noble Correctional Institution
due to lack of subject matter jurisdiction, noting that the case
would proceed as to the individual defendants.
April
11,
2014,
the
magistrate
judge
See Doc. 12.
issued
a
report
On
and
recommendation recommending that this action be dismissed without
prejudice
on
the
individual defendants as required under Fed. R. Civ. P. 4(m).
See
Doc. 24.
for
failure
to
effect
service
of
process
This matter is now before the court for consideration of
the report and recommendation.
On April 18, 2014, plaintiff filed timely objections to the
report and recommendation pursuant to Fed. R. Civ. P. 72(b).
party
objects
within
the
allotted
time
to
a
report
If a
and
recommendation, the court “shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. §636(b)(1);
see also Fed. R. Civ. P. 72(b).
Upon review, the court “may
accept, reject, or modify, in whole or in part, the findings or
recommendations
made
by
the
magistrate
judge.”
28
U.S.C.
§636(b)(1).
The record in the instant case indicates that the summons and
marshal’s service forms were mailed to plaintiff on September 25,
2013.
He was advised by order dated October 29, 2013, that if he
provided a copy of the complaint and a summons and service form for
each individual defendant, they would be served by the Marshal’s
Service.
See Doc. 8, p. 2.
Plaintiff was notified by order dated
December 11, 2013, that any claims against any defendant not served
with process within 120 days after the filing of the complaint
(i.e., a deadline of January 23, 2014) may be dismissed.
See Doc.
13.
In a document filed on January 24, 2014, but dated January 16,
2014, plaintiff summarily alleged that defendants had interfered
with his access to courts in this case by filing unfounded incident
reports which decreased his state pay, thereby impairing his
ability to pay for postage.
Doc. 18.
The magistrate judge
construed this document as a motion for extending the deadline for
effecting service of process.
Although the magistrate judge was
not persuaded that plaintiff had shown good cause, noting the large
number of other filings which had been submitted by plaintiff since
the commencement of this action, an extension until February 24,
2014, was granted.
See Doc. 19, p. 3.
Plaintiff was again advised
that he was required to provide a copy of the complaint with
attached exhibits, a summons and a marshal’s service form for each
2
defendant, and that 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.
Doc. 19, p. 3.
In a document filed on March 6, 2014, plaintiff again claimed
that the defendants had retaliated against him by interfering with
his access to courts by issuing “tickets” for sanctions. Doc. 20.
He also submitted a copy of a February 13, 2014, letter addressed
to the clerk of this court inquiring whether the clerk had received
thirteen copies of the marshal’s service form, thirteen summonses,
and thirteen copies of the complaint which he allegedly mailed on
January 22, 2014, as well as a receipt for $6.60 in postage.
In an
order dated March 6, 2014, the magistrate judge noted that the
docket of this case did not reflect the receipt by the clerk of
these service-related documents.
Doc. 21.
The magistrate judge
also observed that a filing from plaintiff was docketed on January
24, 2014, but that this filing did not include the documents
required for service. Doc. 21, p. 2. The magistrate judge further
commented that postage of $6.60 would not be adequate to cover a
mailing of documents consisting of over 1,100 pages which would be
required for service.
Doc. 21, p. 3.
Nonetheless, the magistrate
judge granted plaintiff one final extension until April 7, 2014, to
provide the documents necessary for service. See Doc. 21, pp. 2-3.
Plaintiff was advised that he had the option of amending the
complaint to reduce the length of the pleading or the number of
named defendants.
Doc. 21, p. 3 n. 3.
Plaintiff was also 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.
3
There
will be no further extension of this deadline.”
Doc. 21, p. 3
(emphasis in original).
On March 31, 2014, plaintiff filed another motion for an
extension of time in which to effect service of process.
Doc. 22.
He claimed that he lacked the funds necessary to pay for the
required copies; that a substitute prison librarian filling in for
the regular librarian, who was on vacation, had limited time to
assist in plaintiff’s institution; that defendant Grey refused to
provide free photocopying services; and that plaintiff had been
transferred without reason to a lower-paying job, thereby depriving
him of the funds necessary to effect service.
By order filed on April 3, 2014, the magistrate judge found
that plaintiff had failed to establish good cause as required under
Rule 4(m) for another extension of time to effect service.
23, pp. 4-5.
Doc.
The magistrate judge noted that the right of access
to the courts does not entitle a prisoner to free access to
photocopying services.
Doc. 23, p. 4 (citing Bell-Bey v. Toombs,
1994 WL 105900 (6th Cir. March 28, 1994)).
The order further
stated that plaintiff had the option of amending the length of his
complaint by omitting exhibits or by reducing the number of named
defendants to mitigate his copying expenses, and that he was free
to copy the complaint by hand.
Doc. 23, p. 5.
The magistrate
judge commented that plaintiff’s vague complaints that a substitute
prison librarian had limited time to assist him did not explain
plaintiff’s six-month failure to provide the required copies. Doc.
23,
p.
5.
The
magistrate
judge
also
rejected
plaintiff’s
allegations about defendant Grey allegedly refusing to provide
plaintiff with free copies.
The magistrate judge noted that even
4
plaintiff’s motion demonstrated that defendant Grey had provided
plaintiff with legal kits and free postage when sending legal
materials, as required under prison regulations, and that he
offered to provide plaintiff with paper, an offer which plaintiff
rejected.
Doc. 23, p. 5.
Finally, the magistrate judge concluded
that good cause was not established by plaintiff’s transfer to a
lower-paying job in January, 2014, because this did not explain why
plaintiff failed to provide the necessary number of copies when he
held a higher-paying job.
Doc. 23, p. 5.
Plaintiff was advised that the deadline for taking all action
necessary to effect service of process was April 7, 2014, that
failure to comply by that date would result in the dismissal of the
action without prejudice for failure to effect timely service of
process, and that there would be no further extension of this
deadline.
Doc. 23, p. 6.
Plaintiff failed to comply with this
deadline, thus prompting the magistrate judge to recommend the
dismissal of this action without prejudice.
See April 11, 2014,
Report and Recommendation, Doc. 24, p. 5.
In his objections to the report and recommendation, plaintiff
again makes conclusory allegations characterizing his transfer to
a lower-paying job as retaliation interfering with his access to
courts.
Plaintiff states that he does not have the funds for the
required copies, as previous deductions for legal mailing and
copies used all of the funds in his prison account.
Plaintiff
acknowledges that his inability to provide the required copies is
due to the lack of funds in his prison account, and that he has no
constitutional right to free copying services. Plaintiff has filed
a declaration (Doc. 27) in which he states that his account balance
5
in February of 2014 was $3.00 after deductions for child support,
computer copying and indigent mailing, and that all of his account
funds were taken in March of 2014 by the Legal Department.
Plaintiff seeks another extension until he is released from the
institution on May 16, 2014.
However, plaintiff states that he
does not currently have the funds to pay for copying, and he does
not indicate exactly how or when he will have the necessary funds
after his release from incarceration.
The court agrees with the conclusion of the magistrate judge
that plaintiff failed to show good cause for not completing service
of process so as to warrant a further extension of the deadline to
effect service.
Plaintiff does not explain why he failed to
provide the requisite number of copies of the complaint and service
forms in the three months prior to being transferred to a lowerpaying job.
Plaintiff
This action has now been pending for seven months.
repeatedly
failed
to
comply
with
the
deadlines
established by the magistrate judge for perfecting service of his
complaint.
He did not act on the suggestions offered by the
magistrate judge which would have reduced his copying expenses,
such as eliminating exhibits, reducing the number of defendants, or
providing hand-written copies of the complaint.
Despite being
granted two extensions for submitting the materials required for
service of process, plaintiff failed to meet the April 7, 2014,
deadline.
The
magistrate
judge
did
not
err
extension to perfect service of process.
in
denying
a
further
The court accepts the
findings and recommendation of the magistrate judge, and agrees
that this action should be dismissed without prejudice pursuant to
6
Rule 4(m) due to plaintiff’s failure to complete service of
process.
This court denies plaintiff’s objections (Docs. 26 and
27) and adopts the report and recommendation (Doc. 24).
This
action is hereby dismissed without prejudice pursuant to Rule 4(m)
for failure to effect service of process.
Plaintiff’s motions for
a temporary restraining order (Docs. 3 and 14), for a protective
order (Doc. 16), and to amend the complaint (Doc. 17) are denied
without prejudice.
Date: April 24, 2014
s/James L. Graham
James L. Graham
United States District Judge
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