Savage v. Troutt et al

Filing 26

ORDER ADOPTING REPORT AND RECOMMENDATION 23 of Magistrate Judge Charles Goodwin and grants defendants' motion to quash 15 construed as a motion to dismiss to the extent it seeks to quash service without dismissing the action; plaintiff's motion for extension of time to serve process 23 is granted; plaintiff granted an additional 30 days or until 12/16/2015 to effect service of process. Signed by Honorable Joe Heaton on 11/12/2015. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
KENT G. SAVAGE,
Plaintiff,
vs.
JEFFREY TROUTT, et al.,
Defendants.

)
)
)
)
)
)
)
)

NO. CIV-15-0670-HE

ORDER
Plaintiff Kent G. Savage, a state prisoner proceeding pro se, filed this § 1983 action
claiming defendants Jeffery Troutt, Tami Grogan, Genese McCoy and the Oklahoma
Department of Corrections violated his Eighth and Fourteenth Amendment Rights and also
the Americans with Disabilities Act. He also asserts they have interfered with his rights
under state law to a “fair and adequate grievance process.” Doc. #1, p. 11. Consistent with
28 U.S.C. § 636(b)(1)(B), the matter was referred to Magistrate Judge Charles B. Goodwin
for initial proceedings. Defendants filed a motion to quash service of process, which the
magistrate judge characterized as a motion to dismiss under Fed.R.Civ.P. 12(b)(5). He
concluded plaintiff’s service of process was defective and recommended that it be quashed
without dismissing the action and that plaintiff be granted another opportunity to perfect
service.
Plaintiff has objected to the Report and Recommendation. He contends that the
problem with the service – he served the summons and complaint and Rule 4(c)(2) requires
that service be effected by an adult who is not a party to the underlying lawsuit – is a hyper

technical defect that should be excused. If not excused, plaintiff requests an extension of
time to effect service, as the 120-day period allowed for service under Rule 4(m) is about to
expire.
The court agrees defendants have been provided with notice of the lawsuit, which is
one of the purposes that service is intended to provide. However, defendants are entitled to
demand that they be served properly and that plaintiff strictly adhere to the requirements of
Rule 4.
The court therefore ADOPTS Magistrate Judge Goodwin’s Report and
Recommendation and GRANTS defendants’ motion to quash [Doc. #15], construed as a
motion to dismiss to the extent it seeks to quash service, without dismissing the action.
Plaintiff’s motion for an extension of time to serve process [Doc. #23] is GRANTED.
Plaintiff is GRANTED an additional thirty (30) days, or until December 16, 2015, to effect
service of process.1
IT IS SO ORDERED.
Dated this 12th day of November, 2015.

1

The court does not expect there to be any further challenges to service of process.

2