Causey v. Palmer et al
Filing
52
ORDER DISMISSING DEFENDANT: Defendant John Doe #2 is dismissed from this action without prejudice pursuant to Rule 41(b), or in the alternative under Rule 4 of the Federal Rules of Civil Procedure.IT IS SO ORDERED. Signed by Honorable Bruce Howe Hendricks on 08/06/2020. (dsto, )
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UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
)
)
)
v.
)
)
John Palmer,
)
Kevin Borem,
)
Brent Blakeley,
)
Joseph Perks,
)
Jonathan Thomas,
)
Coata Kimbrell,
)
David Chandler,
)
Travis Pressley,
)
John Doe #2,
)
Defendants.
)
________________________________________)
Jimmy H. Causey, #172046,
Civil No. 4:20-1724-BHH-TER
Plaintiff,
ORDER
This is a civil action filed by a state prisoner. On May 15, 2020, the Court authorized
service on all Defendants, and summonses were issued. (ECF No. 10.) Summonses
returned executed on all Defendants except John Doe #1 and John Doe #2. (ECF Nos. 20,
21.) On June 22, 2020, Plaintiff identified via USM-285 one of the Doe Defendants as
Travis Pressley, as one of the two transportation offices involved in Plaintiff’s allegations.
(ECF Nos. 23, 24.) Service was authorized again only on Defendant Pressley. (ECF No.
26.)
In the prior order on May 15, 2020, Plaintiff was informed:
While service is authorized and summonses are being issued for the two Doe
Defendants, Plaintiff is put on notice of the obligation to provide more
identifying information. Plaintiff’s attention is directed to Rule 4(m) of the
Federal Rules of Civil Procedure, which provides that unless a defendant is
served within 90 days after the Complaint is filed, this Court may dismiss an
action without prejudice as to that Defendant. Case law interpreting Rule
4(m) or its predecessor, Rule 4(j), has held that a complaint must be
dismissed, absent a showing of good cause, of the complaint is not served
within 90 days after it is filed. See Mendez v. Elliot, 45 F.3d 75, 78-80 (4th
Cir. 1995) (collecting cases). As a result, Plaintiff must be mindful of this
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time limitation and be diligent in obtaining further identifying
information and submitting further service documents for the two Doe
Defendants in this action.
(ECF No. 10).
In the July 6, 2020 order, Plaintiff was informed:
Ninety days runs on the summons of John Doe#2 on August 4, 2020. Plaintiff
must identify Defendants properly and submit further service documents in
order for service to be completed, and if not, as addressed above, such
Defendant is subject to dismissal. Plaintiff is the sole person responsible for
providing information sufficient to identify Defendants and the United States
Marshal cannot serve inadequately identified defendants. Accordingly,
Plaintiff is hereby directed to provide to the Clerk of Court, within twentyone days (21) days of the date of this Order, updated service forms with
more specific identifying information for Defendant John Doe #2 should
Plaintiff desire to attempt service upon this Defendant again. Plaintiff is
hereby warned that if he does not respond to this Order and/or does not
provide a new summons and Form USM-285 for Defendant John Doe #2 with
additional identifying information, Defendant John Doe #2 may be
dismissed without prejudice.
(ECF No. 26) (emphasis in original).
Plaintiff has not complied with the July order and has not provided further identifying
information regarding Defendant John Doe#2. While the USMS is to make reasonable
efforts to serve identified defendants, such obligation only arises once an inmate-plaintiff
has properly identified the defendant. See Shirley v. Staubs, No. 20-6210, 2020 WL
4037633, at *1 (4th Cir. July 17, 2020) (unpublished) (citing Sellers v. United States, 902
F.2d 598, 602 (7th Cir. 1990), and Richardson v. Johnson, 598 F.3d 734, 738-40 (11th Cir.
2010)).
Plaintiff’s lack of an appropriate response indicates an intent to not prosecute this
case against Defendant John Doe#2 and subjects this defendant to dismissal. See Fed.
R. Civ. P. 41(b); see also Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (finding
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dismissal with prejudice appropriate where warning given); Chandler Leasing Corp. v.
Lopez, 669 F.2d 919, 920 (4th Cir. 1982) (indicating that court may dismiss sua sponte).
A complaint may be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil
Procedure for failure to prosecute and/or failure to comply with orders of the court. Id. In
considering whether to dismissal is appropriate pursuant to Rule 41(b), the court is required
to consider four factors:
(1) the degree of plaintiff’s responsibility in failing to respond;
(2) the amount of prejudice to the defendant;
(3) the history of the plaintiff in proceeding in a dilatory manner; and,
(4) the existence of less drastic sanctions other than dismissal.
Davis v. Williams, 588 F.2d 69 (4th Cir. 1978).
Here, Plaintiff is proceeding pro se and is entirely responsible for his actions. It is
solely through Plaintiff, and not that of an attorney, that Plaintiff has not provided additional,
appropriate information in order to complete service on Defendant John Doe#2. Plaintiff
was previously warned that: “The providing of sufficient, accurate, and complete information
on the Form USM-285 is the responsibility of Plaintiff.” The court has “inherent power to
manage its docket in the interests of justice.” Luberda v. Purdue Frederick Corp., No. 4:13cv-00897, 2013 WL 12157548, at *1 (D.S.C. May 31, 2013). It also has the authority
expressly recognized in Rule 41(b) to dismiss actions for failure to prosecute. Fed. R. Civ.
P. 41(b). “The authority of a court to dismiss sua sponte for lack of prosecution has
generally been considered an ‘inherent power,’ governed not by rule or statute but by the
control necessarily vested in courts to manage their own affairs so as to achieve the orderly
and expeditious disposition of cases.” Link v. Wabash R. Co., 370 U.S. 626, 630–31
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(1962).
Moreover, Rule 4(m) of the Federal Rules of Civil Procedure provides that unless
a particular defendant is served within 90 days after the complaint is filed, this Court may
dismiss an action without prejudice as to that particular defendant. Case law interpreting
Rule 4(m) or its predecessor has uniformly held that dismissal is mandatory unless good
cause is shown if a Defendant is not served within the days provided by the rule. Service
of the Complaint as to John Doe#2 was due by August 4, 2020, and has not been
completed.
Accordingly, Defendant John Doe#2 is dismissed from this action without prejudice
pursuant to Rule 41(b), or in the alternative under Rule 4 of the Federal Rules of Civil
Procedure.
IT IS SO ORDERED.
/s/Bruce H. Hendricks
United States District Judge
August 6, 2020
Charleston, South Carolina
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