Hairston v. UNITED STATES OF AMERICA

Filing 8

REPORT AND RECOMMENDATION re 1 Complaint filed by Rico Hairston in that it is RECOMMENDED that this action be dismissed, without prejudice, for failure to timely effect proper service of process, unless, within fourteen (14) days, plaintiff establishes proof of proper service. Objections to R&R due by 8/8/2016. Signed by Magistrate Judge Norah McCann King on 7/20/16. (sem)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
RICO HAIRSTON,
Plaintiff,
vs.

Civil Action 2:16-cv-0055
Chief Judge Sargus
Magistrate Judge King

UNITED STATES OF AMERICA,
Defendant.
REPORT AND RECOMMENDATION
This action was filed on January 20, 2016, naming the United
States of America as a defendant.

Complaint, ECF No. 1.

On the same

day, a summons was issued by the Clerk to the “U. S. Attorney for the
Southern District of Ohio.”

Summons, ECF No. 2.

There has been no

return of service.
On April 22, 2016, the Court ordered plaintiff to show cause why
the action should not be dismissed for failure to timely effect
service of process. Order, ECF No. 3. The Court also specifically
advised plaintiff that “he must submit a copy of the complaint, a
completed summons, and a Marshal service form for the United States
Attorney for the Southern District of Ohio and the United States
Attorney General.”

Id. (citing Fed. R. Civ. P. 4(i)(1)(A) and (B)).

This matter is now before the Court on defendant’s motion to dismiss
the action for failure to effect proper service of process. Motion to
Dismiss, ECF No. 5.
In his response to the Motion to Dismiss, plaintiff asserts that,
on July 6, 2016, he “issued a copy of the signed summons and a copy of
the Complaint, to the Attorney General of the United States of America
in Washington D.C. via U.S. certified mail.” Plaintiff’s Response to

1

the Defendant’s Motion to Dismiss, ECF No. 6. Thus, plaintiff
contends, the issue of service has been resolved and the Motion to
Dismiss should be denied as moot. Id.
As plaintiff was advised in the April 22, 2016 Order, proper
service on the United States requires delivery of “a copy of the
summons and of the complaint to the United States attorney for the
district where the action is brought” and the sending, by registered
or certified mail, of a copy of the summons and of the complaint “to
the Attorney General of the United States at Washington, D.C. . . .”
Fed. R. Civ. P. 4(i)(1)(A)(i), (B). Moreover, a summons must, inter
alia, “be directed to the defendant.” Fed. R. Civ. P. 4(a)(1). Proof
of service under the circumstances presently before this Court must be
made to the court by affidavit of the server. Fed. R. Civ. P. 4(l)(1).
The record in this action – which has now been pending for six
(6) months – does not reflect proper service of process. The United
States concedes that “the United States Attorney’s Office received the
summons and Complaint via Certified Mail on April 26, 2016.” Motion to
Dismiss, PageID# 12.

However, the only summons apparently issued by

the Clerk was addressed, not to the defendant United States of
America, but to “U.S. Attorney for the Southern District of Ohio.”
Summons. Moreover, proof of service has not been properly made to this
Court by way of affidavit of the server.
For these reasons, it is RECOMMENDED that the action be
dismissed, without prejudice, for failure to timely effect proper
service of process unless, within fourteen (14) days, plaintiff
establishes, by affidavit of the server, proof of proper service on
the defendant United States of America and on the United States
Attorney for the Southern District of Ohio.
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).

28

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 the 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 waiver of the right to
appeal the judgment of the District Court.

See, e.g., Pfahler v.

Nat’l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that
“failure

to

constituted

object
a

waiver

to

the

of

[the

magistrate
defendant’s]

judge’s

recommendations

ability

to

appeal

the

district court’s ruling”); United States v. Sullivan, 431 F.3d 976,
984 (6th Cir. 2005) (holding that defendant waived appeal of district
court’s

denial

magistrate

of

judge’s

pretrial
report

motion
and

by

failing

to

recommendation).

timely
Even

object

when

to

timely

objections are filed, appellate review of issues not raised in those
objections is waived.

Robert v. Tesson, 507 F.3d 981, 994 (6th Cir.

2007) (“[A] general objection to a magistrate judge’s report, which
fails

to

specify

the

issues

of

contention,

does

not

suffice

preserve an issue for appeal . . . .”) (citation omitted)).
July 20, 2016

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

3

to