Williams v. Ohio Department of Rehab and Correction, et al. et al
REPORT AND RECOMMENDATIONS: 1) Interested Party, The State of Ohio's Motion to Dismiss 9 be DENIED without prejudice to renewal; 2) Plaintiff's Motion to Withdraw Suit Against Defendant's in Their Individual Capacities 12 be GRANTE D as unopposed; 3) Plaintiff's Motion for an Order directing the U.S. Marshal to Effect Service 12 be GRANTED; and 4) The Clerk of Court be directed to immediately forward to the U.S. Marshal the forms required to effect service, and the U.S. Marshal be directed to forthwith effect service. Objections to R&R due by 8/21/2017. Signed by Magistrate Judge Sharon L. Ovington on 8-7-17. (mcm)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
MELODY L. WILLIAMS,
OHIO DEPARTMENT OF
CORRECTIONS, et al.,
Case No. 3:16-cv-00384
District Judge Thomas M. Rose
Magistrate Judge Sharon L. Ovington
REPORT AND RECOMMENDATIONS1
Plaintiff Melody L. Williams brings this case pro se challenging the conditions at
the Dayton Correctional Institution. Previously, the Court conducted an initial review of
her Complaint, see 28 U.S.C. §§ 1915(d)(2), 1915A, and granted her Motion to Proceed
In Forma Pauperis. (Doc. #4). The Court ordered the U.S. Marshal’s Office to effect
service upon each named Defendant, once it received the required service forms from the
Clerk of Court. And the Court directed, “All costs of service shall be advanced by the
United States.” Id. at PageID #630.
The State of Ohio, as an interested party, has filed a Motion to Dismiss contending
that Plaintiff failed to perfect timely service of summons within 120 days as required by
Fed. R. Civ. P. 4(m). (Doc.#9). Plaintiff responds that any untimeliness of service is not
her fault because she has been granted leave to proceed in forma pauperis, she cannot
Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.
afford copies of her Complaint and attached Exhibits, and she submitted the required
service forms to the Clerk of Court.
“Due process requires proper service of process for a court to have jurisdiction to
adjudicate the rights of the parties.” O.J. Distributing, Inc. v. Hornell Brewing Co., Inc.,
340 F.3d 345, 353 (6th Cir. 2003). At the time Plaintiff was granted leave to effect
service through the Marshal, Rule 4(m) of the Federal Rules of Civil Procedure required
a plaintiff to effect service of summons and complaint “within 120 days after the filing of
the complaint....” If timely service is not effected, Rule 4(m) requires the Court “to
dismiss the action without prejudice as to any defendant not timely served.” Upon a
plaintiff’s showing of good cause for failing to effect timely service, the Court may order
that service be effected within a specified time. Fed. R. Civ. P. 4(m).
In the present case, good cause exists for the lack of timely service. The record
indicates that Plaintiff submitted the required service forms when she filed her Motion to
Proceed in Forma Pauperis. Although service has not been effected, the reason for the
delay in service after the Court directed the Marshal’s Office to effect service is not
attributable to Plaintiff.
IT IS THEREFORE RECOMMENDED THAT:
Interested Party, The State of Ohio’s Motion to Dismiss (Doc. #9) be
DENIED without prejudice to renewal;
Plaintiff’s Motion to Withdraw Suit Against Defendant’s in Their Individual
Capacities (Doc. #12) be GRANTED as unopposed;
Plaintiff’s Motion for an Order directing the U.S. Marshal to Effect Service
(Doc. #12) be GRANTED; and
The Clerk of Court be directed to immediately forward to the U.S. Marshal
the forms required to effect service, and the U.S. Marshal be directed to
forthwith effect service.
August 7, 2017
s/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after
being served with this Report and Recommendations. Such objections shall specify the
portions of the Report objected to and shall be accompanied by a memorandum of law in
support of the objections. If the Report and Recommendation is based in whole or in part
upon matters occurring of record at an oral hearing, the objecting party shall promptly
arrange for the transcription of the record, or such portions of it as all parties may agree
upon or the Magistrate Judge deems sufficient, unless the assigned District Judge
otherwise directs. A party may respond to another party’s objections within
FOURTEEN days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947,
949-50 (6th Cir. 1981).
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