Stevenson v. Helton et al
Filing
32
ORDER: The Report and Recommendation (Docket No. 21 ) is hereby ACCEPTED AND APPROVED, and Defendants' Motion to Dismiss (Docket No. 14 ) is hereby DENIED. Signed by District Judge Kevin H. Sharp on 10/11/2011. (xc:Pro se party by regular and certified mail.)(hb)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
COLUMBIA DIVISION
DARRYL STEVENSON,
Plaintiff,
v.
LES HELTON, SHERIFF and
MUNICIPALITIES OF MARSHALL
COUNTY,
Defendants.
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No. 1:10-00043
Judge Sharp
ORDER
The Magistrate Judge has entered a Report and Recommendation (“R & R”) (Docket No. 21) in
which he recommends that Defendants’ Motion to Dismiss (Docket No. 14) for insufficient service of
process under Fed. R. Civ. P. 12(b)(5) be denied. In doing so, the Magistrate Judge notes that “[i]f
Defendants were not properly served in this case, Plaintiff is not responsible for that circumstance,”
(Docket No. 21 at 3) because Plaintiff is proceeding in forma pauperis, and responsibility for service
rests with the United States Marshal pursuant to 28 U.S.C. § 1915(d). As such, the Magistrate Judge
submits that it would be inappropriate to dismiss the case. However, to remedy any lack of service, the
Magistrate Judge also recommends that Defendants be given twenty days to file a notice of waiver of the
defense, or to otherwise advise the Court on where and when they can be served. Defendants have filed
responses to the R & R in which they waive service of process. (Docket Nos. 29 & 30).
Accordingly, the R & R (Docket No. 21) is hereby ACCEPTED AND APPROVED, and
Defendants’ Motion to Dismiss (Docket No. 14) is hereby DENIED.
It is SO ORDERED.
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KEVIN H. SHARP
UNITED STATES DISTRICT JUDGE
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