Arnold v. Wall et al

Filing 35

ORDER DISMISSING CASE: The action is dismissed without prejudice. So Ordered by Chief Judge William E. Smith on 8/26/2016. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
______________________________
)
)
)
)
v.
)
)
A.T. WALL, et al.,
)
Defendants.
)
______________________________)
MICHAEL WAYNE ARNOLD,
Plaintiff,

C.A. No. 15-80-S

ORDER
WILLIAM E. SMITH, United States District Judge.
On March 2, 2015, Plaintiff Michael Wayne Arnold, pro se,
filed a civil rights Complaint (ECF No. 1) against A.T. Wall,
Director of the Rhode Island Department of Corrections, Prison
Guard Gass, Warden Jankowski, Inspector Wells, “John Doe in Army
Pants,” “John Doe Head of Medical,” and “John Doe in Charge of
Isolation Cells.”

Arnold also filed an Application to Proceed

without Prepayment of Fees and Affidavit (ECF No. 2). 1

A summary

of subsequent events follows.
After screening the Complaint pursuant to 28 U.S.C. §§
1915(e)(2) and 1915A, the Court ordered Arnold to file an Amended
Complaint, which he did on April 13, 2015 (ECF No. 4). 2 He included

1

On May 15, 2015, the Application to proceed in forma pauperis
was denied as moot after Arnold paid the filing fee.
2

At the same time, Arnold filed a Motion to Appoint Counsel
(ECF No. 5).
The motion was denied without prejudice in a

three

summonses,

Defendant.

none

of

which

was

addressed

to

a

specific

Nonetheless, they were issued on June 10, 2015.

Arnold filed a Second Amended Complaint (ECF No. 14) on July
31, 2015. 3

However, he failed to include any summonses with that

document.
On September 25, 2015, Arnold filed a Supplemental Complaint
(ECF No. 17). 4

He attached one summons.

In a letter dated

September 28, 2015 (ECF No. 15), the Court explained to Arnold
that the summons was not issued because it had not been properly
completed.

The Court included with the letter a blank summons,

with instructions regarding completion, as well as information
regarding how to properly effectuate service of process.
Arnold filed a Motion for Service of Process (ECF No. 22) on
October

5,

2015.

On

October

21,

2015,

the

Court

issued

a

Memorandum and Order (ECF No. 7) dated May 6, 2015. On July 15,
2015, Arnold filed a Notice of Appeal (ECF No. 12) of the denial.
In a Judgment (ECF No. 27) entered November 2, 2015, the Court of
Appeals for the First Circuit dismissed the appeal, noting both
that an order by a magistrate judge is not a final order which can
be reviewed directly by a court of appeals and that an order
denying a motion for appointment of counsel is not immediately
appealable to the court of appeals.
3

The Second Amended Complaint added a defendant, Warden
Nelson Lefebvre.
4

The Supplemental
September 29, 2015, as
Court to file it. A
supplemental complaint

Complaint was stricken by text order dated
Arnold had not sought permission from the
subsequent motion for leave to file a
(ECF No. 21) was denied.
2

Memorandum and Order (ECF No. 24) granting Arnold in forma pauperis
status and ordering the U.S. Marshal Service to serve Defendants
with copies of his first and second Amended Complaints.

The

Memorandum and Order was followed by a letter from the Court (ECF
No. 26), which included Process Receipt and Return forms and
summonses.

The letter again informed Arnold how the forms should

be completed and instructed him to return them to the Court when
completed.

The forms were not completed and returned to the Court

as directed.
Seven months later, on May 31, 2016, the Court received a
letter from Arnold (ECF No. 31), in which he apologized for the
“long delay” and his “absence from the case,” explained that the
case was in the hands of an attorney for nine months, and stated
that he did want to pursue the matter.

On June 9, 2016, the Court

issued a Show Cause Order (ECF No. 32), ordering Arnold to show
cause, in writing, why the case should not be dismissed for lack
of prosecution, namely failure to make service upon Defendants
within ninety days after the filing of the Second Amended Complaint
and issuance of summonses as required by Federal Rule of Civil
Procedure 4(m).

The Show Cause Order further stated that “[i]f no

good cause is shown the above-referenced matter will be dismissed
without prejudice.”

(Id.)

3

The Court received Arnold’s response (ECF No. 33) to the Show
Cause Order five days later.

Arnold again stated that an attorney

had had the case files for nine months and had just returned them
to Arnold, saying that he did not want the case.

Arnold also

stated that he was trying to get another attorney because he had
no legal education or knowledge.

Arnold subsequently sent the

Court a letter (ECF No. 34) informing the Court that he still had
no attorney.
The Court finds that Arnold has not shown good cause for his
failure to serve Defendants within ninety days of the filing of
the Second Amended Complaint and issuance of summonses as required
by Fed. R. Civ. P. 4(m). 5

Accordingly, as forewarned in the Show

Cause Order, the action is DISMISSED without prejudice.

IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: August 26, 2016

5

As of the date of this Order, Defendants still have not been
served.
4