Grassick v. Holder et al

Filing 18

ORDER granting in part and denying in part 13 Motion requesting service of first amended and verified complaint on defendants by a person specially appointed by the court; denying 14 Motion for extension of time to execute service on the defendants. So Ordered by Magistrate Judge Landya B. McCafferty on 5/1/2012. (Duhamel, John)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

Patricia Grassick

v.

Civil No. 11-cv-328-SM

Eric H. Holder, Jr., et al.

0 R DE R

Before the court is a complaint (see First Am. and Verified
Compl., doc. no. 7) filed in forma pauperis by prose plaintiff,
Patricia Grassick, asserting claims of employment discrimination
and retaliation against her former employer, the United States
Department of Justice ("DOJ"), naming as defendants federal
officers including supervisors at the United States Attorney's
Office for the District of Rhode Island, where she worked.
Grassick has alleged that the federal defendants are liable to
her under the Rehabilitation Act, 29 U.S.C.

§

794a; the Age

Discrimination in Employment Act ("ADEA"), 28 U.S.C. § 633a; the
Age Discrimination Act, 42 U.S.C.

§§

6101-6107; the

Whistleblower Protection Act ("WPA"), 5 U.S.C.

§

2302(b) (8); the

Notification and Federal Employee Anti-Discrimination and
Retaliation Act of 2002 ("No FEAR Act"), Pub. L. No. 107-174,

116 Stat. 566, and the Racketeer Influenced and Corrupt
Organizations Act ("RICO"), 18 U.S.C.

§

1964(c).

Also pending are three motions filed by Grassick (doc. nos.
10, 13 and 14).

The court has referred two of those motions to

the magistrate judge (doc. nos. 13 and 14), and those motions
are resolved in this order. 1

Background
In a Report and Recommendation issued on this date, the
undersigned magistrate judge has recommended that Grassick's WPA
claims be dismissed without prejudice to Grassick proceeding on
similar WPA claims in a related case pending in this court,
Grassick v. Holder, 09-CV-0587-PJB-LM (D.R.I. filed Dec. 4,
("Grassick I") . 2

2009)

This magistrate judge has also

recommended that the court dismiss Grassick's hostile work
environment Rehabilitation Act claim, her post-discharge claims
of retaliation, her RICO claims, her Age Discrimination Act
1

Grassick's remaining motion (doc. no. 10), seeking a remand
of her claims to the Equal Employment Opportunity Commission
("EEOC"), will be resolved in a separate order, after defendants
have been provided an opportunity to file a response.
2

In a separate order issued on this date, the court has
directed that, unless the parties object within 14 days, the two
related cases filed by Grassick in the United States District
Court for the District of Rhode Island shall be consolidated for
all purposes.

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claim, and her No FEAR Act claims.

If the Report and

Recommendation is accepted by the court, Grassick's claims in
this action will consist of claims alleging employment
discrimination and retaliation, specifically, an age
discrimination claim under the ADEA, and claims alleging
retaliation and a failure to make a reasonable accommodation
under the Rehabilitation Act.

Discussion
I.

Motion to Serve Process (doc. no. 13)
Grassick has filed a motion (doc. no. 13), requesting that

this court appoint a person to serve the complaint.

Grassick

specifically requests that the court not appoint the United
States Marshal for the District of Rhode Island

(~u.s.

Marshal's

Office") because, Grassick asserts, the U.S. Marshal's Office
was influenced by defendants and failed to serve the complaint
promptly in the related case that she filed in this court, Case
No. 09-cv-587-PJB-LM

(~Grassick

I").

Pursuant to Fed. R. Civ. P. 4(c) (3), this court is required
to appoint an officer of the court to serve process on behalf of
a plaintiff who has been granted leave to proceed in forma
pauperis.

The court in this case has identified plausible

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claims for relief asserted in the complaint (doc. no. 7) which
warrant its service.
The U.S. Marshal's Office is routinely appointed to make
service in cases where a plaintiff is proceeding in forma
pauperis.

Upon review of the motion and relevant documents

filed in Grassick I, the court finds no reason at this time to
depart from its practice of directing the U.S. Marshal's Office
to serve the complaint.

Therefore, Grassick's motion (doc. no.

13) is granted in part and denied in part; the court orders
service of process, but declines to appoint a person other than
the U.S. Marshal's Office to effect such service.

II.

Motion for Extension of Time to Serve Process (doc. no. 14)
Grassick has filed a motion (doc. no. 14) requesting

additional time to effect service, in effect seeking to delay
service until after the court rules on her motion (doc. no. 10)
seeking an order remanding the case to the EEOC.

The court

anticipates granting defendants leave to file a response to
Grassick's motion to remand (doc. no. 10), once they have been
served and have appeared in this action.

Delaying service of

the complaint upon DOJ, pending the court's disposition of a
motion (doc. no. 10) that might be better resolved after the
government has had an opportunity to respond to that motion,

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would not be a prudent exercise of the court's discretion and
would not otherwise serve the interests of justice or judicial
efficiency.

Grassick's motion requesting that service upon DOJ

be delayed (doc. no. 14) is, therefore, denied.

III. Service
For reasons set forth in the Report and Recommendation
issued on this date, the court directs that the complaint (doc.
no. 7) be served upon the DOJ, pursuant to Fed. R. Civ. P. 4(i),
in the following manner:

The clerk's office shall prepare and

issue a summons for the DOJ, and shall forward to the U.S.
Marshal's Office the summons and copies of this Order, the
Report and Recommendation issued on this date, and the First
Amended and Verified Complaint (doc. no. 7).

Upon receipt of

the necessary documentation, the U.S. Marshal's Office shall
serve the DOJ, pursuant to Fed. R. Civ. P. 4(i) (2), by
delivering the documents to the United States Attorney for the
District of Rhode Island, and by mailing the documents by
certified mail to the Office of the Attorney General of the
United States.
DOJ shall file a response to the complaint no later than
sixty days from the date of service on the United States

5

Attorney for the District of Rhode Island.
See Fed. R. Civ. P.
12 (a) (2) .
Plaintiff is referred to Fed. R. Civ. P. 5, which requires
that every pleading, written motion, notice, and similar paper,
after the original complaint, shall be served by delivering or
mailing the materials to DOJ's attorneys.

Conclusion
For the foregoing reasons, the court denies the motion for
an extension of time to effect service (doc. no. 14), and grants
in part and denies in part the motion (doc. no. 13) to appoint a
person to serve the complaint; the court directs the U.S.
Marshal's Office to effect service of process upon the United
States and DOJ, as set forth above.
SO ORDERED.

Judge
May 1, 2012
cc:

Patricia Grassick, pro se
Special Assistant U.S. Attorney Artemis Lekakis, Esq.

LM:nmd

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