Fitzpatrick v. Marshall County Jail et al

Filing 26

REPORT AND RECOMMENDATION: The Magistrate Judge RECOMMENDS that this action 1 be DISMISSED WITHOUT PREJUDICE under Rule 4(m). Signed by Magistrate Judge Alistair Newbern on 10/27/2021. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(vh)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
COLUMBIA DIVISION

KIONA D. FITZPATRICK,
Plaintiff,

Case No. 1:20-cv-00055

v.

Judge William L. Campbell, Jr.
Magistrate Judge Alistair E. Newbern

MARSHALL COUNTY JAIL et al.,
Defendants.

To:

The Honorable William L. Campbell, Jr., District Judge
REPORT AND RECOMMENDATION
The docket in this action shows that Plaintiff Kiona D. Fitzpatrick, who appears pro se and

in forma pauperis, has not returned a service packet for Defendant Jail Administrator Sabrina
Patterson, the only remaining defendant in this action. On May 21, 2021, the Court ordered
Fitzpatrick to show cause by June 19, 2021, why the Magistrate Judge should not recommend that
this action be dismissed for failure of service under Federal Rule of Civil Procedure 4(m) and
warned Fitzpatrick that failure to respond could result in a recommendation of dismissal. (Doc.
No. 25.) Fitzpatrick has not responded to the Court’s show-cause order. For the reasons that follow,
the Magistrate Judge will recommend that this action be dismissed without prejudice under
Rule 4(m).
I.

Factual and Procedural Background
Fitzpatrick initiated this action on March 9, 2020, by filing a complaint under 42 U.S.C.
§ 1983, alleging that, while she was detained at the Marshall County Jail in Lewisburg, Tennessee,
Patterson and other jail officials violated her rights under the Eighth and Fourteenth Amendments
by using excessive force against her, subjecting her to inhumane conditions of confinement, and

failing to apply sentence credits to shorten her detention. (Doc. No. 1.) On September 15, 2020,
the Court granted Fitzpatrick’s application to proceed in forma pauperis and screened her
complaint under 28 U.S.C. §§ 1915(e)(2) and 1915A. (Doc. Nos. 10, 11.) The Court found that
Fitzpatrick had stated a colorable claim against Patterson for acting with deliberate indifference to
Fitzpatrick’s entitlement to release upon the expiration of her sentence. (Doc. Nos. 10, 11.) All
other defendants and claims were dismissed. (Doc. Nos. 10, 11.) The Court sent Fitzpatrick a blank
service packet for Patterson and ordered her to complete and return the service packet within 21
days of receiving the Court’s screening order. (Doc. No. 11.) Fitzpatrick did not return the service
packet.
On May 21, 2021, the Court found that Fitzpatrick had not returned a completed service
packet for Patterson and ordered her to show cause by June 19, 2021, why the Magistrate Judge
should not recommend that the remaining claims in this action be dismissed under Rule 4(m) for
Fitzpatrick’s failure to effect service on Patterson. (Doc. No. 25.) The Court ordered Fitzpatrick to
return a completed service packet for Fitzpatrick with her response to the show-cause order and
warned her that failure to comply with the show-cause order would likely result in a
recommendation that her claims be dismissed. (Id.) Fitzpatrick has not responded to the Court’s
show-cause order.
II.

Legal Standard
“[T]he requirement of proper service of process ‘is not some mindless technicality[,]’”
Friedman v. Est. of Presser, 929 F.2d 1151, 1156 (6th Cir. 1991) (quoting Del Raine v. Carlson,
826 F.2d 698, 704 (7th Cir. 1987)), nor is it “meant to be a game or obstacle course for plaintiffs[,]”
Ace Am. Ins. Co. v. Meadowlands Dev. Ltd. P’ship, 140 F. Supp. 3d 450, 455 (E.D. Pa. 2015).
Rather, it goes to the very heart of a court’s ability to hear a case. “[W]ithout proper service of
process, consent, waiver, or forfeiture, a court may not exercise personal jurisdiction over a named
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defendant.” King v. Taylor, 694 F.3d 650, 655 (6th Cir. 2012); see also Mann v. Castiel, 681 F.3d
368, 372 (D.C. Cir. 2012) (explaining that “[s]ervice is . . . not only a means of ‘notifying a
defendant of the commencement of an action against him,’ but ‘a ritual that marks the court’s
assertion of jurisdiction over the lawsuit’” (citation omitted)). Where personal jurisdiction is not
properly established, a court cannot exercise its authority consistent with due process of law. See
Friedman, 929 F.2d at 1156–57.
Federal Rule of Civil Procedure 4(m) provides that “[i]f a defendant is not served within
90 days after the complaint is filed, the court—on motion or on its own after notice to the
plaintiff—must dismiss the action without prejudice against that defendant or order that service be
made within a specified time.” Fed. R. Civ. P. 4(m). The Court must extend the time for service
upon a showing of good cause, and the Court may exercise its discretion to permit late service
even where a plaintiff has not shown good cause. Fed. R. Civ. P. 4(m) advisory committee’s note
to 1993 amendment (explaining that Rule 4(m) “explicitly provides that the court shall allow
additional time if there is good cause for the plaintiff’s failure to effect service . . . and authorizes
the court to [grant relief] . . . even if there is no good cause shown”); see also Henderson v. United
States, 517 U.S. 654, 662–63 (1996); DeVane v. Hannah, No. 3:11-cv-00389, 2011 WL 5916433,
at *2 (M.D. Tenn. Nov. 28, 2011). Otherwise, the language of Rule 4(m) mandates dismissal,
either on motion or sua sponte. Fed. R. Civ. P. 4(m); see also Byrd v. Stone, 94 F.3d 217, 219 &
n.3 (6th Cir. 1996). In light of this plain language, it is well established that Rule 4(m) empowers
a court to dismiss complaints without prejudice “upon the court’s own initiative with notice to the
plaintiff.” Hason v. Med. Bd. of Cal., 279 F.3d 1167, 1174 (9th Cir. 2002); see also Friedman, 929
F.2d at 1155 n.4 (noting that “the issue of ineffective service of process may be raised sua sponte”).

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III.

Analysis
More than one year has passed since the Court first ordered Fitzpatrick to return a
completed service packet for Patterson, and Patterson has not been served and has not appeared in
this action. The Court afforded Fitzpatrick ample opportunity to return a service packet for
Patterson and issued a show-cause order providing her with an opportunity to explain why the
Court should extend the time for service rather than dismiss her claims. (Doc. No. 25.)
The fact that Fitzpatrick appears pro se does not excuse her failure to comply with the
Court’s orders. See Cantrell v. Parker Corp., Civ. No. 3:13-1395, 2014 WL 7366100, at *1–2
(M.D. Tenn. Dec. 23, 2014) (dismissing pro se plaintiff’s complaint without prejudice for failure
to comply with court orders and Rule 4(m)). Because Fitzpatrick has not returned a completed
service packet for Patterson in compliance with this Court’s orders despite plenty of time to do so,
notice that failure to do so may result in dismissal, and an opportunity to show good cause to
excuse this failure, dismissal without prejudice under Rule 4(m) is appropriate.

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IV.

Recommendation
For these reasons, the Magistrate Judge RECOMMENDS that this action be DISMISSED
WITHOUT PREJUDICE under Rule 4(m).
Any party has fourteen days after being served with this Report and Recommendation to

file specific written objections. Failure to file specific objections within fourteen days of receipt
of this report and recommendation can constitute a waiver of appeal of the matters decided.
Thomas v. Arn, 474 U.S. 140, 155 (1985); Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004).
A party who opposes any objections that are filed may file a response within fourteen days after
being served with the objections. Fed. R. Civ. P. 72(b)(2).
Entered this 27th day of October, 2021.

____________________________________
ALISTAIR E. NEWBERN
United States Magistrate Judge

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