Murdock v. Bruce et al

Filing 71

REPORT AND RECOMMENDATION: For the reasons state above, the undersigned Magistrate Judge recommends that Defendants' motion to dismiss or for summary judgment (Docket Entry Nos. 43 and 56 ) should be denied. Signed by Magistrate Judge John S. Bryant on 3/6/2015. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
MARSHALL H. MURDOCK, pro se,
Plaintiff
v.
PATSY BRUCE, et al.,
Defendants
TO:

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No. 3:12-1244
Judge Sharp/Bryant
Jury Demand

THE HONORABLE KEVIN H. SHARP
REPORT AND RECOMMENDATION
Defendants Bruce, Cooper, Cole, Hakeem, Hill, Johnson,

Jones, Schofield and Traughber have filed their motion to dismiss
the complaint or, in the alternative, their motion for summary
judgment (Docket Entry No. 43). As grounds, these Defendants argue
that dismissal is appropriate pursuant to Federal Rule of Civil
Procedure 4(m), which requires that a defendant be served within
120 days after the complaint is filed. Defendants maintain that
they were not served for at least 17 months after the filing of the
complaint.
Plaintiff Murdock has filed a reply in opposition (Docket
Entry No. 48). Defendant Traughber and the Tennessee Board of
Parole have adopted Defendants’ motion to dismiss or for summary
judgment (Docket Entry No. 56).
For the reasons stated below, the undersigned Magistrate
Judge finds that Defendants’ motion to dismiss or, alternatively,
for summary judgment should be denied.

STATEMENT OF THE CASE
Plaintiff Murdock, a prisoner proceeding pro se and in
forma pauperis, has filed this civil rights action pursuant to 42
U.S.C. § 1983 alleging that the individual Defendants, members of
the

Tennessee

Board

of

Parole

and

Probation,

have

violated

Plaintiff’s due process rights by wrongfully denying Plaintiff
parole (Docket Entry No. 11 at 4). For relief, Plaintiff seeks a
declaratory finding that the denial of parole “was unlawful,
illegal, void and is of no further force and effect” (Id. at 5).
Plaintiff also seeks money damages.
Defendants have filed their motions to dismiss or for
summary judgment.
STANDARD OF REVIEW
A party may obtain summary judgment by showing “that
there is no genuine dispute as to any material fact and that the
movant is entitled to judgment as a matter of law. See Fed. R. Civ.
P. 56(a); Covington v. Knox County School Sys., 205 F.3d 912, 914
(6th Cir. 2000). The moving party bears the initial burden of
satisfying the court that the standards of Rule 56 have been met.
See Martin v. Kelley, 803 F.2d 236, 239 n.4 (6th Cir. 1986). The
ultimate question to be addressed is whether there exists any
genuine dispute of material fact. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986); Covington, 205 F.3d at 914 (citing

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Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). If so, summary
judgment is inappropriate.
To

defeat

a

properly

supported

motion

for

summary

judgment, the nonmoving party must set forth specific facts showing
that there is a genuine issue of material fact for trial.

If the

party does not so respond, summary judgment will be entered if
appropriate. Fed. R. Civ. P. 56(e). The nonmoving party’s burden of
providing specific facts demonstrating that there remains a genuine
issue of material fact for trial is triggered once the moving party
shows an absence of evidence to support the nonmoving party’s case.
Celotex, 477 U.S. at 325. A genuine issue of material fact exists
“if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson, 477 U.S. at 248. In
ruling on a motion for summary judgment, the Court must construe
the evidence in the light most favorable to the nonmoving party,
drawing all justifiable inferences in its favor. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
SUMMARY OF PERTINENT PROCEDURAL FACTS
From the record, it appears that Plaintiff filed his
original complaint in this case on November 29, 2012, and that the
Court granted Plaintiff’s application to proceed in forma pauperis
on January 30, 2013. In the order granting Plaintiff IFP status the
Court directed the Clerk to mail to the Plaintiff service packets
(a summons and USM-285 service form) for each Defendant. Plaintiff
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was ordered to complete the service packets and return them to the
Clerk’s office within 21 days, after which the Clerk was ordered to
issue process to the Defendants (Docket Entry No. 7).
Plaintiff Murdock filed an amended complaint on April 26,
2013. On August 16, 2013, the undersigned Magistrate Judge issued
an order requiring Plaintiff Murdock to show cause by August 30,
2013, why his complaint should not be dismissed for his failure to
comply with the Court’s order requiring him to return completed
service packets to the Clerk (Docket Entry No. 17). On August 28,
2013, Plaintiff filed his response and stated therein that he had
never received the service packets from the Clerk, and that if the
packets had been mailed they must have been “lost or misdirected”
by the mail room at the Riverbend Maximum Security Institution
where

Plaintiff

Murdock

was

confined

(Docket

Entry

No.

20).

Plaintiff stated that upon receipt of the service packets he would
gladly complete and return them to the Clerk as directed.
On March 17, 2014, the undersigned Magistrate Judge
granted two motions by Plaintiff for leave to amend his complaint
and directed the Clerk to mail another set of service packets to
Plaintiff Murdock to be completed and returned to the Clerk within
28 days (Docket Entry No. 25).
The record indicates that completed service packets were
received in the Clerk’s office on April 8, 2014, and summonses were

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issued on the following day, April 9, 2014. The record indicates
that service of process on the Defendants was accomplished in late
April and early May 2014 (Docket Entry Nos. 33 34, 35, 37, 38 and
39). Defendants filed their motion to dismiss or for summary
judgment on June 9, 2014 (Docket Entry No. 43).
ANALYSIS
Rule

4(m)

of

the

Federal

Rules

of

Civil

Procedure

provides in pertinent part as follows:
Time Limit for Service. If a defendant is not served
within 120 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. But if the plaintiff shows good cause for
the failure, the court must extend the time for service
for an appropriate period.
Defendants argue here that Plaintiff Murdock has failed
to serve them within the required 120 days and has failed to show
good cause for his failure. In response to Murdock’s claim that he
never received the service packets mailed to him by the Clerk in
February 2013, Defendants have filed the affidavit of Charles
Smith, a corrections officer employed at Riverbend Maximum Security
Institution

(Docket

Entry

No.

46).

In

this

affidavit,

Smith

testifies that the prison mail log at Riverbend shows that items of
mail addressed to Murdock from the Clerk of this Court were logged
in at the prison mail room on February 6, February 7, February 8,
February 15, and February 26, 2013 (Id.) The mail log apparently

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does not contain information identifying the contents of Murdock’s
mail from the Clerk.1
The docket sheet includes a copy of a mail return receipt
that appears to bear Murdock’s signature indicating it contained
Docket Entry No. 7, the order granting Murdock’s motion for leave
to proceed in forma pauperis (Docket Entry No. 9). In addition, the
docket sheet indicates that mail addressed to Murdock was returned
by the post office undelivered and received by the Clerk on
February 13, 2013 (Docket Entry No. 10). The docket sheet indicates
that this mail was resent to Murdock with a corrected zip code on
that same day.
In his response in opposition to Defendants’ motions,
Murdock states that he never received service packets in this case
from the Clerk (Docket Entry 48 at 3). Murdock further asserts that
the law library at Riverbend Maximum Security Institution does not
maintain copies of summons forms for the district court and that he
was able to obtain a photocopy of a summons “from a friend who
lives in east Tennessee” (Id. at 3).
From the foregoing facts, the undersigned Magistrate
Judge finds that Plaintiff Murdock has demonstrated good cause for
the delay in accomplishing service of process on Defendants. First,

1
The undersigned Magistrate Judge notes that Plaintiff Murdock had
a second case pending in this district in February 2013, and the record
indicates that the Clerk also sent mail to Murdock in this other case
during February 2013. Charles H. Roberts and Marshall H. Murdock v. State
of Tennessee, et al., No. 3:11-1127.

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Murdock is a prisoner confined in the custody of the Tennessee
Department

of

Corrections

and

must

rely

upon

the

mail

to

communicate with the Court. Second, Murdock is without legal
representation
regarding

and

deadlines

is

entitled

and

to

pleading

certain

liberal

formalities

not

treatment
ordinarily

afforded to parties who are represented by lawyers. Third, the
record is unclear whether Murdock actually received service packets
from the Clerk that should have been mailed to him in February
2013. The docket sheets indicate that mailings were made by the
Clerk’s Office to Murdock in February 2013, but the record fails to
state whether service packets were included in the mailings. The
affidavit of Charles Smith indicates that Murdock received mailings
from the Clerk during February 2013, but these records likewise
fail to indicate what those mailings contained. As mentioned above,
Murdock states that he failed to receive service packets from the
Clerk.
From all of the foregoing, the undersigned finds that
there is at least a reasonable doubt that Murdock received service
packets from the Clerk in February 2013. Murdock did return service
packets shortly after a second set was mailed to him in March 2014.
Finally, although Defendants in their memorandum argue that they
have been prejudiced by delay in receiving service of process, the
undersigned finds that, given the legal issues in this case it is
unlikely

that

Defendants

have

been

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materially

prejudiced.

In

addition, the undersigned finds that courts generally disfavor
disposing of cases based upon procedural default and favor deciding
cases on the legal merits.
For all the reasons stated above, the undersigned finds
that Defendants’ motions to dismiss or for summary judgment (Docket
Entry Nos. 43 and 56) should be denied.
RECOMMENDATION
For the reasons state above, the undersigned Magistrate
Judge recommends that Defendants’ motion to dismiss or for summary
judgment (Docket Entry Nos. 43 and 56) should be denied.
Under Rule 72(b) of the Federal Rules of Civil Procedure,
any

party

has

14

days

from

receipt

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 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 14 days of receipt of
this Report and Recommendation can constitute a waiver of further
appeal of this Recommendation. Thomas v. Arn, 474 U.S. 140 106 S.
Ct. 466, 88 L.Ed.2d 435 (1985), Reh’g denied, 474 U.S. 1111 (1986).
ENTER this 6th day of March, 2015.
/s/ John S. Bryant
JOHN S. BRYANT
United States Magistrate Judge

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