Carroll et al v. Fentress Co Sheriff Depart. et al

Filing 67

REPORT AND RECOMMENDATION: The Magistrate Judge RECOMMENDS that deft Fentress County Sheriff's Dept's 29 MOTION to Dismiss should be GRANTED and that deft Wasik's motion to dismiss should be DENIED. Signed by Magistrate Judge John S. Bryant on 1/18/12. (xc:Pro se party by regular and certified mail.)(rd)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NORTHEASTERN DIVISION
JOSHUA LEE CARROLL, et al.,
Plaintiffs,
v.
FENTRESS COUNTY SHERIFF’S
DEPARTMENT, et al.,
Defendants.

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NO. 2:11-0019
Judge Sharp/Bryant

TO: The Honorable Kevin H. Sharp
REPORT AND RECOMMENDATION
Defendants

Fentress

County

Sheriff’s

Department

and

Laurel Wasik have filed their motion to dismiss (Docket Entry No.
29), and plaintiff King has filed a response in opposition (Docket
Entry No. 63).
For the reasons stated below, the undersigned Magistrate
Judge

RECOMMENDS

that

defendant

Fentress

County

Sheriff’s

Department’s motion to dismiss should be GRANTED and that defendant
Wasik’s motion to dismiss should be DENIED.
Statement of the Case
Plaintiffs Joshua Lee Carroll and William Carter King,
prisoners who are proceeding pro se and in forma pauperis, have
filed their complaint pursuant to 42 U.S.C. section 1983 which,
liberally construed, alleges that defendants have been wilfully
indifferent to their serious medical needs (Docket Entry No. 1).

The Chief Judge has determined that at least some of plaintiffs’
claims are not facially frivolous (Docket Entry No. 4).
The Motion To Dismiss
Defendants

Fentress

County

Sheriff’s

Department

and

Laurel Wasik jointly have filed a motion to dismiss (Docket Entry
No. 29).

These defendants assert different grounds supporting

their motion for dismissal, and the undersigned Magistrate Judge
will address each defendant separately.
Fentress County Sheriff’s Department.

Fentress County

Sheriff’s Department asserts that the complaint against it should
be dismissed, presumably pursuant to Rule 12(b)(6), because the
Sheriff’s Department is not a legal entity subject to suit under
section 1983.

Therefore, the Sheriff’s Department argues that the

complaint against it fails to state a claim upon which relief can
be granted.
In a suit premised on 42 U.S.C. section 1983, the
Sheriff’s Department is not an entity that may be sued, and
Fentress County is the proper party to address the allegations in
plaintiffs’ complaint.
(6th Cir. 1994).
finds

that

the

See Matthews v. Jones, 25 F.3d 1046, 1049

For this reason, the undersigned Magistrate Judge
complaint

against

defendant

Fentress

County

Sheriff’s Department should be DISMISSED.
Defendant

Laurel

Wasik.

The

complaint

identifies

defendant Laurel Wasik as the jail administrator at the Fentress
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County Jail in Jamestown, Tennessee.

Although her motion to

dismiss does not explicitly cite the rules upon which she seeks
dismissal, it appears that defendant Wasik bases her motion on lack
of personal jurisdiction, insufficient process and insufficient
service of process, pursuant to Rule 12(b)(2), (4) and (5) of the
Federal Rules of Civil Procedure.

Specifically, defendant Wasik

asserts that she has not been personally served with process in
this case under either Rule 4 of the Federal Rules of Civil
Procedure or the corresponding state rule for serving process in an
action brought in courts of general jurisdiction in Tennessee.
The record in this case indicates that a copy of the
summons and complaint addressed to defendant Wasik was served by
the U.S. Marshals Service via certified mail addressed to Ms. Wasik
at the Fentress County Sheriff’s Department, 100 Smith Street,
Jamestown, Tennessee 38556 (Docket Entry No. 12).

This mail was

signed for by an individual named Helen Cook.
In support of her motion to dismiss, defendant Wasik has
filed her own affidavit in which she states that on the date of
service she did not reside at 100 Smith Street in Jamestown, nor
has she ever appointed Helen Cook, or anyone else, as her agent to
receive service of process (Docket Entry No. 32).

Neither Rule 4

of the Federal Rules of Civil Procedure nor the corresponding
Tennessee state rule for service of process authorizes service
merely by delivery to a defendant’s place of employment.

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From the

record,

it

appears

that

plaintiffs

have

attempted

to

serve

defendant Wasik by mailing process to her place of employment at
the Fentress County Jail.

Moreover, the record fails to indicate

that defendant Wasik has personally received a copy of the summons
and complaint.
This case presents a situation that a fellow Magistrate
Judge in this district has recently considered in another section
1983 case involving an in forma pauperis prisoner plaintiff.

See

Stevenson v. Helton, No. 1:10-0043, 2011 WL 3422776 (M.D. Tenn.
Aug. 4, 2011).

In discussing service of process in in forma

pauperis, pro se prisoner cases, Magistrate Judge Knowles stated
the following:
The rules governing the proper service of process
in federal courts can be quite complex. [Docket
citation omitted].
One principle, however, is
clear.
In cases filed in forma pauperis, the
responsibility for serving summonses rests upon the
United States Marshal. Title 28, Section 1915(d)
states in part, “The officers of the court shall
issue and serve all process, and perform all duties
in such [in forma pauperis] cases.” Additionally,
Fed.R.Civ.P. 4(c)(3) provides:
At the plaintiff’s request, the court may order
that service be made by a United States marshal or
deputy marshal or by a person specially appointed
by the court.
The court must so order if the
plaintiff is authorized to proceed in forma
pauperis under 28 U.S.C. § 1915. . . .
As the Sixth Circuit has stated:
Together, Rule 4(c)[3] and 28 U.S.C. § 1915[(d)]
stand for the proposition that when a plaintiff is
proceeding in forma pauperis the court is obligated
to issue plaintiff’s process to a United States
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Marshal who must in turn effectuate service upon
the defendants, thereby relieving a plaintiff of
the burden to serve process once reasonable steps
have been taken to identify for the Court the
defendants named in the complaint. Byrd v. Stone,
94 F.3d 217, 219 (6th Cir. 1996).
Id. at *1.
The undersigned Magistrate Judge finds this reasoning
persuasive. In this case, the record reflects that defendant Wasik
was reasonably identified for the Court, that the U.S. Marshals
Service served summonses on defendant Wasik via certified mail, and
that process was delivered at the address indicated. (Docket Entry
No. 12).
County

Summons for defendant Wasik was executed at the Fentress

Sheriff’s

Department

at

100

Smith

Street,

Jamestown,

Tennessee, where Ms. Wasik allegedly is employed.
In summary, plaintiffs, prisoners proceeding pro se and
in

forma

pauperis

have

met

their

burden

by

identifying

the

defendants to be served; at that point, responsibility for service
of process rests with the United States Marshals Service.

If

defendants were not properly served, plaintiffs cannot be held
responsible.

Therefore, the Court should DENY defendant Wasik’s

motion to dismiss.
Defendants have the option to waive the defenses of lack
of personal jurisdiction, insufficient process and insufficient
service of process.

Federal Rule of Civil Procedure 12(h).

Alternatively, despite the recommended denial of her motion to
dismiss,

defendant

Wasik

may,

if
5

she

chooses,

demand

proper

service.

It is therefore RECOMMENDED that the Court allow 21 days

for defendant Wasik to advise the Court whether she will waive
defenses related to service of process.

If she chooses not to

waive service, defendant Wasik shall advise the Court in a filing
where and when she desires to be served, so that the Court may
direct the Marshals Service to serve defendant Wasik at the
specified time and place. See also Allen v. Siddiqui, No. 3:07-CVP261-H, 2008 WL 2217363 at *2 (W.D. Ky. May 27, 2008).
RECOMMENDATION
For

the

reasons

stated

above

in

this

report

and

recommendation, the undersigned Magistrate Judge RECOMMENDS that
defendant Fentress County Sheriff’s Department’s motion to dismiss
should be GRANTED and that defendant Wasik’s motion to dismiss
should be DENIED.
Under Rule 72(b) of the Federal Rules of Civil Procedure,
any party has fourteen (14) days from service of this Report and
Recommendation in which to file any written objections to this
Recommendation, with the District Court.

Any party opposing said

objections shall have fourteen (14) days from receipt of any
objections filed in this Report in which to file any responses to
said objections.

Failure to file specific objections within

fourteen (14) days of receipt of this Report and Recommendation can

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constitute a waiver of further appeal of this Recommendation.
Thomas v. Arn, 474 U.S. 140 (1985), reh’g denied, 474 U.S. 1111
(1986).
ENTERED this 18th day of January 2012.

s/ John S. Bryant
JOHN S. BRYANT
United States Magistrate Judge

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