Geissler v. Patterson et al

Filing 147

ORDER RULING ON 118 REPORT AND RECOMMENDATION: The court has thoroughly reviewed the record. In the court's view, fairness dictates that the Marshals Service attempt service of the second amended complaint on Defendant Smith at the residence where Defendant Smith was served via his roommate. The Clerk of Court is directed to prepare a summons and the attention of the Marshals Service is directed to ECF No. 142 for such information as may be pertinent. Plaintiff's motion for default judgment (ECF No. 109 ) is denied,without prejudice. The case is recommitted to the Magistrate Judge for further pretrial handling.IT IS SO ORDERED. Signed by Honorable Margaret B Seymour on 11/15/2017. (dsto, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Russell Geissler, #349604,

)
) C/A No. 4:17-236-MBS-TER
Plaintiff,
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)
vs.
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)
ORDER
Dennis Bush, Warden, Broad River;
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Lisa Young, Captain Saluda Unit;
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Washington, Assoc. Warden Broad River; )
Brian Smith, Lt. Nights Saluda Unit;
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Orvil McClean, Correctional Officer
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Broad River,
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Defendants.
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____________________________________)
Plaintiff Russell Geissler filed this action on January 25, 2017, alleging that his constitutional

rights have been violated in various respects. See 42 U.S.C. § 1983. In accordance with 28 U.S.C.
§ 636(b) and Local Rule 73.02, D.S.C., this matter was referred to United States Magistrate Judge
Thomas E. Rogers, III for pretrial handling.
The Magistrate Judge issued an order authorizing service of process on March 8, 2017.
Summonses were issued to Defendants Bush, McClean, Smith, and Young the same day. On April
14, 2017, the Marshals Service filed Process Receipts and Returns indicating that the summons for
Defendant Bush had been returned executed, and that the summonses had been returned unexecuted
as to Defendants McClean and Smith. New summonses for Defendants McClean and Smith were
issued by the court on May 16, 2017.
Plaintiff filed an amended complaint on June 19, 2017. On July 21, 2017, summonses were
issued to Defendants Washington, McClean, and Smith. On August 7, 2017, the Marshals Service
filed a Process Receipt and Return indicating that the summons was returned unexecuted as to

Defendant McClean. On August 28, 2017, Plaintiff filed a motion for default judgment against
Defendant Brian Smith. On August 29, 2017, Plaintiff filed a second amended complaint. On
August 31, 2017, the Marshals Service filed a Process Receipt and Return indicating that the
summons was returned unexecuted as to Defendant Smith as to the first amended complaint. Also
on August 31, 2017, the Magistrate Judge issued a Report and Recommendation in which he
recommended that Plaintiff’s motion for default judgment be denied as premature because Defendant
Smith had not been served.1
Plaintiff filed objections to the Report and Recommendation on September 11, 2017.
Plaintiff advised the court that Defendant Smith’s roommate had been served with copies of the
summons and complaint on July 19, 2017. In support of his argument, Plaintiff attached a copy of
a Process Receipt and Return from the United States Marshals Service. The Process Receipt was
not included in the court’s records.
Defendants Bush, Washington, and Young (the “SCDC Defendants”) filed a reply in
opposition to Plaintiff’s objections on September 25, 2017. The SCDC Defendants assert that,
judging from the dates reflected on the receipt, Defendant Smith had been served with Plaintiff’s
original complaint, which already had been superseded by the first amended complaint filed on June
19, 2017. The SCDC Defendants contend that service was ineffective because Defendant Smith had
been served with an inoperative complaint. Plaintiff filed a response on October 2, 2017, essentially
arguing that he had been disadvantaged in locating a viable address for Defendant Smith. On

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For purposes of completeness, the docket reflects that the Marshals Service filed Process
Receipts and Returns for Defendant Washington on September 1, 2017; and Defendant McClean
on October 16, 2017, both showing that the summonses were returned executed with respect to
the first amended complaint.
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October 30, 2017, upon inquiry from the court, the Marshals Service filed a Process Receipt and
Return indicating the summons for Defendant Smith was returned executed via service upon
Defendant Smith’s roommate.
The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight. The responsibility for making a final determination remains with this court.
Mathews v. Weber, 423 U.S. 261, 270 (1976). This court may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the Magistrate Judge. 28 U.S.C. § 636(b)(1).
This court may also receive further evidence or recommit the matter to the Magistrate Judge with
instructions. Id.
The court has thoroughly reviewed the record. In the court’s view, fairness dictates that the
Marshals Service attempt service of the second amended complaint on Defendant Smith at the
residence where Defendant Smith was served via his roommate. The Clerk of Court is directed to
prepare a summons and the attention of the Marshals Service is directed to ECF No. 142 for such
information as may be pertinent. Plaintiff’s motion for default judgment (ECF No. 109) is denied,
without prejudice. The case is recommitted to the Magistrate Judge for further pretrial handling.
IT IS SO ORDERED.
s/Margaret B. Seymour________
Margaret B. Seymour
Senior United States District Judge
Columbia, South Carolina
November 15, 2017

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