James v. Herring et al

Filing 33

ORDER: IT IS THEREFORE ORDERED that, because Plaintiff has failed to meet the requirements of this Court's May 29, 2014 Order, Defendants LCPL Monroe Herring; Officer Lorrie Oates; Asst. Chief Bobby McLean; and City of Dillon are DISMISSED with prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. IT IS SO ORDERED. Signed by Honorable R Bryan Harwell on 6/18/2014. (mcot, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Tim B. James,
Plaintiff,
v.
LCPL Monroe Herring; Officer
Lorrie Oates; Asst. Chief Bobby
McLean; Nurse Doe; Chief Johnny
Sah; Dillon County Sheriff Major
Hulon; and City of Dillon,
Defendants.

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Civil Action No.: 4:13-cv-3056-RBH

ORDER

Plaintiff Tim B. James (“Plaintiff”), represented by counsel, brought this civil action against
the above captioned Defendants pursuant to 42 U.S.C. § 1983 on November 10, 2013. See Compl.,
ECF No. 1. Defendants Captain Johnny Sapp, identified as Johnny Sah in the caption; Brandy
Barfield, identified as Nurse Doe in the caption; and Dillon County Sheriff Major Hulon answered
on March 10, 2014. See Answer, ECF No. 6. On May 21, 2014, Magistrate Judge Kaymani D.
West issued a Report and Recommendation (“R & R”), which recommended the Court dismiss
Defendants LCPL Monroe Herring; Officer Lorrie Oates; Asst. Chief Bobby McLean; and City of
Dillon without prejudice for failure to prosecute.

In response, Plaintiff filed a “motion for

reconsideration” of the R & R, which the Court construed as objections. See Mot., ECF No. 27. On
May 29, 2014, the Court issued an Order declining to adopt the R & R. See Order, ECF No. 29.
Defendants Herring, Oates, McLean, and the City of Dillon had yet to appear at the time of
the R & R, and Plaintiff’s counsel had not provided the Court with any information regarding
whether these Defendants had been served despite several warnings from the Court. See Order,
ECF No. 29 at 2. Accordingly, in her R & R, the Magistrate Judge recommended that Defendants

Herring, Oates, McLean, and City of Dillon be dismissed without prejudice pursuant to Rule 41 of
the Federal Rules of Civil Procedure (“FRCP”) for failure to prosecute. See ECF No. 25 at 2.
Plaintiff filed a “motion for reconsideration” of the R & R, which the Court construed as
objections. Plaintiff asserted, among other things, that he had not accomplished service because his
Yahoo email address was filtering the Court’s ECF Notices of Electronic Filing as spam. See Pl.’s
Objections, ECF No. 27. In its May 29, 2014 Order, the Court warned Plaintiff’s counsel that he
should not need to receive two orders from the Court to remind him to comply with deadlines for
service specified in the Federal Rules of Civil Procedure. See ECF No. 29 at 4. Nevertheless, the
Court gave Plaintiff’s counsel some leeway and declined to dismiss these Defendants at that
juncture. See id. However, the Court specifically warned Plaintiff’s counsel that if he did not
provide proper proof of service of these Defendants by June 12, 2014, Defendants Herring, Oates,
McLean, and City of Dillon would be dismissed with prejudice. See id. at 5.
On June 12, 2014, Plaintiff’s counsel filed a one page “Affidavit of Personal Service.” This
document states that the Summons and Complaint were hand delivered to Johnny Sapp, “the DCSC
Cap. at Dillon County Det Ctr.” See Affidavit, ECF No. 31. The affidavit provided that a copy was
left with him at the Dillon County Sheriff’s Office, located at 305 W. Hampton St., Dillon, SC
29505 on June 2, 2014. Id. The Affidavit explained that Johnny Sapp was the “person served if
corporate defendant,” but the Affidavit does not indicate what corporate defendant it purported to
serve. See id.
The Court finds that this affidavit does not provide any information regarding service of
these individual Defendants Herring, Oates, or McLean, or the municipality of the City of Dillon.
Plaintiff has provided no information as to whether these Defendants have been served. Thus,

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Plaintiff has not complied with the Court’s prior order. To the extent the Affidavit purports to
prove service of the City of Dillon, the Court notes that Plaintiff has provided no explanation as to
how serving Defendant Sapp would constitute proper service of the City of Dillon. In his answer to
the Complaint, Johnny Sapp explained that he is a Captain with the Dillon County Detention
Center. See Answer, ECF No. 6 at 11. Accordingly, the Court finds that Plaintiff has not provided
proof of proper service of any of the Defendants in question. Accordingly, dismissal is warranted
for failure to prosecute and for failure to comply with this Court’s prior Order. See Fed. R. Civ. P.
41(b); see also Galvez v. Horry County, No. 4:10–cv–03165–RBH, 2012 WL 1790311, at *2
(D.S.C. May. 17, 2012) (noting that “it is well established that a district court has authority to
dismiss a case, sua sponte, for failure to prosecute under the inherent authority possessed by district
courts”).
IT IS THEREFORE ORDERED that, because Plaintiff has failed to meet the
requirements of this Court’s May 29, 2014 Order, Defendants LCPL Monroe Herring; Officer
Lorrie Oates; Asst. Chief Bobby McLean; and City of Dillon are DISMISSED with prejudice
pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
IT IS SO ORDERED.

s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
Florence, South Carolina
June 18, 2014

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