United States of America v. Critter Management Inc et al

Filing 17

JUDGMENT AND PERMANENT INJUNCTION BY CONSENT It is ORDERED and ADJUDGED that 16 the Parties' Joint Motion for Entry of Judgment and Permanent Injunction is GRANTED. Details set forth in Order. IT IS FURTHER ORDERED and ADJUDGED that this Court retains jurisdiction over this case to ensure compliance with this Judgment and Permanent Injunction by Consent and that the United States may conduct full post-judgment discovery to monitor compliance with the injunction. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 7/31/2017.(sshe, )

IN THE UNITED STATES DISTRICT COUlz\-tEl"-ilD CLERK'S OFFICE
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
1011 AUG _ I I A 8: 0 2
Lavadre Butler, #337779,
a/k/a Lavadre D. Butler,
a/k/a Lavadre Dashun Butler,
Plaintiff,
V.

Trevor Bessinger,
Lisa Young,
Gregory Washington,
Mr. Escalyne,
Mr. Suarez,
Mr. Braddy,
Mr. Shorter,
Mr. Williams,
Mr. Wilson,
Defendants.

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ORDER AND OPINION

This matter is before the Court on the Report and Recommendation ("R. &R.") of the
Magistrate Judge (Dkt. No. 50) recommending that the Court dismiss the action without
prejudice as to Defendants Escalyne and Wilson pursuant to either Rule 41(b) or Rule 4(m) of
the Federal Rules of Civil Procedure. For the reasons below, this Court declines to adopt the R.
& R. (Dkt. No. 50) and denies without prejudice Plaintiffs motion to amend the complaint (Dkt.
No. 52).

I.

Background and Relevant Facts
Plaintiff, a state prisoner proceeding pro se, filed this action on November 15, 2016,

alleging claims of excessive force and deliberate indifference to a serious medical need under 42
U.S.C. § 1983. (Dkt. No. 1.) On March 22, 2017, the Magistrate authorized service of process.
(Dkt. No. 24). On April 3, 2017, the summonses for all Defendants were re-issued after the Court

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granted Plaintiffs motion for assistance from the U.S. Marshals Service for assistance with
service of process. (Dkt. Nos. 28, 30). All the summonses were returned executed except for the
summonses for Defendants Escalyne and Wilson. The notation on the unexecuted summonses
indicated that there was no employee by the name of Escalyne and there were several employees
with the last name "Wilson." (Dkt. Nos. 33, 34.) On June 1, 2017, the Magistrate ordered
Plaintiff to provide new summonses and Forms USM-285 for Escalyne and Wilson with more
specific information. Plaintiff did not respond to that order or complete service documents. For
this reason, the Magistrate has recommended that this Court dismiss the action as to Defendants
Escalyne and Wilson for either (1) Plaintiffs failure to prosecute and/or failure to comply with
orders of the court under Rule 41(b), or (2) Plaintiffs failure to serve Defendants Wilson and
Escalyne within ninety (90) days after the complaint was filed under Rule 4(m). (Dkt. No. 50 at
3.)

II.

Legal Standard - Magistrate's Report and Recommendation
The Magistrate Judge makes only a recommendation to this Court. The recommendation

has no presumptive weight, and the responsibility for making a final determination remains with
this Court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This Court is charged with
making a de nova determination of those portions of the R. & R. to which specific objection is
made. Fed. R. Civ. P. 72(b)(2). Additionally, the 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)(l).

III.

Discussion
Plaintiff has filed objections to the R. & R. (Dkt. No. 50) and a motion for extension of

time to amend his complaint (Dkt. No. 52), indicating in both that he is diligently pursuing

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information that will allow him to properly serve defendants Escalyne and Wilson. Plaintiff
appears to be making his best efforts to serve these two defendants. This Court finds it would be
inappropriate to sua sponte dismiss the action against these two defendants under the present
circumstances. See Allen v. Carey, 626 F. App'x 852 (11th Cir. 2015) (District court abused its
discretion in dismissing civil rights case filed by state inmate, proceeding pro se and in forma

pauperis, 1 against correctional officers for failure to effect service, where inmate largely
identified defendants and provided information relevant to distinguishing which of officers at
facility with same last name was subject of his complaint, and district court failed to determine
whether defendants could be located with reasonable effort.)

IV.

Conclusion
For the reasons discussed above, the Court declines to adopt the R. & R. (Dkt. No. 50.)

Plaintiff will have until September 29, 2017 to serve Defendants Escalyne and Wilson. Plaintiffs
motion for extension of time to amend the complaint (Dkt. No. 52) is denied without prejudice.
Plaintiff may seek to amend his complaint if and when he has grounds to do so.

AND IT IS SO ORDERED.

United States District Court Judge
July -i-{, 2017
Charleston, South Carolina

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Plaintiff Butler is proceeding pro se but is not proceeding in forma pauperis.

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IN THE UNITED STATES DISTRICT COURfECEIVED CLERK'S OFFICE
FOR THE DISTRICT OF SOUTH CAROLINA
UG
BEAUFORT DIVISION
10\l A

UNITED STATES OF AMERICA,
Plaintiff,

v.
CRITTER MANAGEMENT, INC.,
JOSEPH MAFFO,
ELEANOR MAFFO,
DANA MAFFO, and
VINCENT MAFFO,
Defendants.

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Case No. 9: 17-cv-924-RMG

JUDGMENT AND PERMANENT
INJUNCTION BY CONSENT

This matter is before the Court on the Parties' Consent Motion for Entry of Judgment and
Permanent Injunction. (Dkt. No. 16.) The Court having reviewed the submissions, as stipulated
and consented to by the parties, hereby finds as follows:
1.

Plaintiff, the United States of America, has filed a complaint seeking a permanent

injunction against Defendants under 26 U.S.C. § 7402(a).
2.

Critter Management, Inc., Joseph Maffo, Eleanor Maffo, Dana Maffo, and

Vincent Maffo, (collectively, "Defendants") admit for purposes of this injunction that the Court
has personal jurisdiction over them and subject matter jurisdiction over this matter without
admitting any of the other allegations in the complaint.
3.

Defendants waive the entry of findings of fact and conclusions of law and

voluntarily consent to the entry without further notice of this permanent injunction under 26
U.S.C. § 7402(a) and agree to be bound by its terms.

4.

Defendants further understand and agree that:
a.

This Judgment and Permanent Injunction by Consent will be entered under

Fed. R. Civ. P. 65 and will result in the entry, without further notice, of a Final Judgment
against them in this matter;
b.

Defendants waive any right they may have to appeal from this Judgment

and Permanent Injunction by Consent;
c.

The Court will retain jurisdiction over this matter for the purpose of

implementing and enforcing this Judgment and Permanent Injunction by Consent;
d.

If Defendants violate this injunction, they may be subject to civil and

criminal sanctions for contempt of court;
e.

The United States may conduct full post-judgment discovery to monitor

compliance with this injunction; and
f.

Entry of this Judgment and Permanent Injunction by Consent resolves

only this civil injunction action, and neither precludes the United States, or any of its
agencies, from pursuing any other current or future civil or criminal matters or
proceedings, nor precludes Defendants from contesting their liability in any other matter
or proceeding.
Accordingly, it is hereby ORDERED and ADJUDGED that the Joint Motion for Entry of
Judgment and Permanent Injunction by Consent (Dkt. No. 16) is GRANTED.

It is FURTHER ORDERED and ADJUDGED pursuant to 26 U.S.C. § 7402(a) that:

1.

Joseph Maffo, Eleanor Maffo, Dana Maffo, and Vincent Maffo (individually and

doing business under any other name or using any other entity) and Critter Management, Inc.,
and their representatives, agents, servants, employees, attorneys, successors in interest and
assigns, and anyone in active concert or participation with them, are prohibited from failing to
withhold and pay to the IRS all employment taxes, including federal income, FUTA, and FICA
taxes, required by law;

2.

Critter Management, Inc., Joseph Maffo, Eleanor Maffo, Dana Maffo, and

Vincent Maffo, shall segregate and hold separate and apart from all other funds all monies
withheld from employees or collected from others for taxes under any internal revenue laws of
the United States and to deposit the monies so withheld and collected, as well as the employer's
share of FICA taxes, in an appropriate federal depository bank in accordance with the federal
deposit regulations;

3.

Critter Management, Inc., Joseph Maffo, Eleanor Maffo, Dana Maffo, and

Vincent Maffo, shall deposit FUTA taxes in an appropriate federal depository bank each quarter
in accordance with the federal deposit regulations;

4.

Critter Management, Inc., Joseph Maffo, Eleanor Maffo, Dana Maffo, and

Vincent Maffo, and any other individuals who are responsible for carrying out the duties
established under paragraphs B. and C. above, shall, for a period of five years, sign and deliver
affidavits, letters, or other correspondence signed under penalty of perjury pursuant to 28 U.S.C
§ 1746 to RO Clegg, 9 Park of Commerce Blvd., Ste. 107, Savannah, GA 31405, or to such other

specific location as the IRS may direct, on the first day of each month, stating that the requisite
withheld income, FICA, and FUTA tax deposits were timely made;
5.

Critter Management, Inc., Joseph Maffo, Eleanor Maffo, Dana Maffo, and

Vincent Maffo, shall timely file all Form 941 and 940 tax returns with RO Clegg, 9 Park of
Commerce Blvd., Ste. 107, Savannah, GA 31405 or to such other specific location as directed by
the IRS;
6.

Critter Management, Inc., Joseph Maffo, Eleanor Maffo, Dana Maffo, and

Vincent Maffo shall timely pay all required outstanding liabilities due on each tax return required
to be filed;
7.

Critter Management, Inc., Joseph Maffo, Eleanor Maffo, Dana Maffo, and

Vincent Maffo, and their representatives, agents, servants, employees, attorneys, successors in
interest and assigns, and anyone in active concert or participation with them, are prohibited from
assigning any property or rights to property or making any disbursements before paying all
required outstanding liabilities due on each tax return required to be filed going forward from the
date of this Judgment and Permanent Injunction by Consent; and
8.

Joseph Maffo, Eleanor Maffo, Dana Maffo, and Vincent Maffo shall notify the

IRS in the future of any new company they may individually or jointly come to own, manage, or
work for in the next five years.
IT IS FURTHER ORDERED and ADJUDGED that this Court retains jurisdiction over
this case to ensure compliance with this Judgment and Permanent Injunction by Consent and that

the United States may conduct full post-judgment discovery to monitor compliance with the
injunction.
AND IT IS SO ORDERED.

Richard M. Gergel
United States District Court Judge
July ~,2017
Charleston, South Carolina