Spraggins v. Owens

Filing 29

OPINION AND ORDER adopting Report and Recommendations re 24 Report and Recommendations.; denying 26 Motion. Signed by Judge James L. Graham on 2/12/2018. (ds)(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
Desean Spraggins,
Plaintiff,
v.

Case No. 2:17-cv-273

Charlotte E. Owens,
Defendant.
OPINION AND ORDER
This is an action brought pursuant to 42 U.S.C. §1983 by
plaintiff,

Desean

Spraggins,

an

Ohio

state

prison

Plaintiff’s complaint was filed on April 5, 2017.

On

inmate.

October 20,

2017, the magistrate judge issued a report and recommendation on
the initial screen of plaintiff’s amended complaint pursuant to 28
U.S.C. §1915A. See Doc. 17. The magistrate judge recommended that
the claims against all defendants be dismissed, with the exception
of

the

First

Lieutenant

Amendment

Sexton

capacities.

and

retaliation

Officer

claims

Showalter1

in

asserted
their

against

individual

After considering objections filed by plaintiff, the

court adopted the report and recommendation by order filed on
November 9, 2017.

See Doc. 9.

On December 11, 2017, the magistrate judge issued a show cause
order, noting that plaintiff had failed to serve defendants Sexton
and Showalter within the ninety-day period allowed under Fed. R.
Civ. P. 4(m).

Doc. 23, p. 1.

Plaintiff was ordered to show cause

within twenty-one days of the date of the order why the court
should not dismiss these defendants and why the court should allow

1

In plaintiff’s filings, this defendant’s name is spelled
both “Shewalter” and “Showalter.”

an extension of time to effect service.

Doc. 23, p. 2.

The order

also stated, “Plaintiff must support any good cause showing with
sworn affidavits.”

Doc. 23, p. 2.

order was due by January 2, 2018.
the show cause order.

A response to the show cause
Plaintiff filed no response to

On January 24, 2018, the magistrate judge

filed a report and recommendation in which she recommended that the
court dismiss Sexton and Showalter as defendants without prejudice
pursuant to Rule 4(m) for failure to timely effect service of
process.

Doc. 24, p. 1.

On February 6, 2018, plaintiff timely filed an objection to
the report and recommendation.

Doc. 25.

Plaintiff alleged

generally that his legal mail was mishandled by the prison mail
room.

Plaintiff expressed his belief that his mail was being

tampered with due to discrimination against him within the prison
system.

Doc.

25,

p.

1.

He

further

stated

that

he

restrictive housing and has no access to the legal library.
25, pp. 1-2.

is

in

Doc.

Plaintiff also noted that he had “written” a legal

document to the court on October 30, 2017, within the deadline for
responding to the show cause order.

Plaintiff also filed a motion

on February 6, 2018, requesting that summons and Marshal’s Service
forms be sent to him.
If a party objects within the allotted time to a report 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

2

judge.”

28

U.S.C.

§636(b)(1).
Plaintiff’s objections fail to establish that the magistrate
judge erred in recommending that this action be dismissed for
failure to serve Sexton and Showalter.

Even if his objection to

the report and recommendation is construed as a response to the
show

cause

order,

it

is

not

a

timely

or

adequate

response.

Plaintiff has provided no explanation as to why he has not yet
served

these

defendants,

nor

has

he

provided

the

supporting

affidavits required by the show cause order.
Plaintiff attached to his objection a document dated on
October 30, 2017, which was filed on November 27, 2017.
21.

See Doc.

However, this document predated the December 11, 2017, show

cause order, and does not respond to the issue of service.2
Plaintiff’s conclusory complaints concerning the prison mail
room’s mishandling of his mail also do not provide an explanation
for his failure to serve Sexton and Showalter.

He does not allege

that he failed to receive the show cause order in time to respond
to it.

He does not claim that he mailed summonses and Marshal’s

Service forms for serving Sexton and Showalter which were not
delivered due to the actions of mail room personnel.
Plaintiff’s earlier filings include complaints about the
handling of his mail.

However, most of these documents are

unsigned or concern complaints about the nondelivery of mail to and

2

The document appears to assert objections to the October 20,
2017, report and recommendation concerning the initial screen of
plaintiff’s amended complaint. These objections were not timely
filed. Even if the court were to consider them now, nothing in
these objections establishes that the magistrate judge’s
recommendations and this court’s adoption of them were erroneous.
3

from plaintiff’s family.3

The record does not indicate that

plaintiff failed to receive correspondence from this court.

In

fact, the record suggests the contrary. Plaintiff timely responded
to the magistrate judge’s order on April 6, 2017, which directed
him to pay the filing fee or to submit an application for leave to
proceed in forma pauperis.

See Docs. 2 and 3.

On August 7, 2017,

plaintiff filed a timely objection to the magistrate judge’s report
and recommendation of July 28, 2017.

See Docs. 11 and 12.

In this

objection, he referred to the previous orders filed in this case on
April 6, 2017, May 5, 2017, and June 8, 2017, and to the report and
recommendation filed on July 28, 2017.

See Doc. 12, p. 1.

Plaintiff filed documents which were construed by this court as
timely objections to the magistrate judge’s October 20, 2017,
report and recommendation. See Docs. 17-19. Plaintiff’s objection
to the report and recommendation now before the court was filed
within the specified time period.
Also relevant to the instant report and recommendation and
plaintiff’s motion requesting forms is the April 6, 2017, notice of
deficiency issued by the magistrate judge.

This notice ordered

plaintiff to submit the required filing fee or an application for
leave to proceed in forma pauperis.

See Doc. 2.

It advised

plaintiff that he was required to submit a completed summons and

3

See Doc. 4, p. 1 (unsigned and undated complaint about mail
tampering); Doc. 12, p. 4 (unsigned and undated complaint about
mail delivery, with notations that outgoing mail is delivered to
the post office daily and that “legal mail is delivered to you
within 48 hrs”);
Doc. 12, p. 7 (June 12, 2017, report that
grievance by plaintiff that he was not receiving mail from family
members or responses to informal complaints and kites was denied);
Doc. 28, p. 1 (undated complaint about the failure to deliver mail
from family members).
4

Marshal’s Service form for each defendant.
directed

the

clerk

to

send

copies

of

Doc. 2, p. 2.
the

application and service forms to plaintiff.

in

forma

It also
pauperis

Doc. 2, p. 2.

An

internal docket entry dated April 6, 2017, reflects that a copy of
the prisoner IFP form, a summons form and USM-285 were mailed to
plaintiff

on

that

date.

Plaintiff

apparently

received

this

correspondence, because on May 3, 2017, he filed a timely motion
for leave to proceed in forma pauperis using the prisoner IFP form.
See Doc. 3.

The record also shows that in plaintiff’s November 8,

2017, motion for appointment of counsel, he included a document
entitled “Summons on all agents of Defendants.” See Doc. 18, p. 8.
Although this document does not refer to Showalter or Sexton, it
demonstrates

that

plaintiff

was

aware

of

the

requirement

of

submitting summons forms.
The fact that plaintiff is in restrictive housing and has no
access to a legal library does not explain his failure to perfect
service.

No research of legal issues is required in order to

complete the summons and Marshal’s Service forms.

The clerk’s

office provided plaintiff with the necessary service forms early in
the case.

The record indicates that, despite being in restrictive

housing, plaintiff has regularly submitted filings to the clerk’s
office during the pendency of this case.

The fact that he is

proceeding pro se does not relieve him of the responsibility to
comply with basic rules of court.

McNeil v. United States, 508

U.S. 106, 113 (1993).
Plaintiff has offered no satisfactory explanation for his
failure to provide summons and Marshal’s Service forms for Sexton
and Showalter, nor has he provided good cause for an extension of

5

time to obtain service. Plaintiff’s objection and his motion to be
provided with service forms are not well taken.
In

conclusion,

the

court

agrees

with

the

report

and

recommendation of the magistrate judge, and hereby adopts the
report and recommendation (Doc. 24). The individual capacity First
Amendment retaliation claims asserted against Lieutenant Showalter
and Officer Sexton are dismissed without prejudice pursuant to Fed.
R. Civ. P. 4(m) for failure to timely effect service of process.
Plaintiff’s motion for service documents (Doc. 26) is denied.

The

clerk shall enter judgment in this case in accordance with this
order and the court’s order of November 9, 2017.

Date: February 12, 2018

s/James L. Graham
James L. Graham
United States District Judge

6