Fisher v. United States Marshal Service et al

Filing 54

REPORT AND RECOMMENDATION re 1 Complaint: The Court respectfully RECOMMENDS that this action be DISMISSED WITHOUT PREJUDICE in accordance with Rules 4(m) and 41(b) of the Federal Rules of Civil Procedure. Signed by Magistrate Judge Juliet E. Griffin on 5/6/2015. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

JOHN FISHER, JR.

)
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v.
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UNITED STATES MARSHALS SERVICE, et al. )

TO:

NO. 3:14-1795

Honorable Kevin H. Sharp, Chief District Judge

REPORT AND RECOMMENDATION
By Order entered September 30, 2014 (Docket Entry No. 19), the Court referred this action
to the Magistrate Judge to enter a scheduling order for the management of the case, to dispose or
recommend disposition of any pretrial motions under 28 U.S.C. §§ 636(b)(1)(A) and (B), and to
conduct further proceedings, if necessary, under Rule 72(b) of the Federal Rules of Civil Procedure
and the Local Rules of Court.
The Plaintiff filed this lawsuit pro se and in forma pauperis on September 3, 2014, seeking
relief under 42 U.S.C. § 1983 for violations of his civil rights alleged to have occurred at the
Robertson County Detention Center (“RCDC”) in Springfield, Tennessee, where he was confined
as a federal pretrial detainee at the time the lawsuit was filed. Upon preliminary review pursuant to
28 U.S.C. §§ 1915(e)(2)(B) and 1915A, the Court found that the Plaintiff stated a claim against
Southern Health Partners and Dr. Matthews based on allegations that the Plaintiff had not received
adequate medical care. See Order entered September 30, 2014 (Docket Entry No. 18). However,
the Court dismissed the Plaintiff’s claims against the United States Marshals Service and the
Robertson County Jail, as well as his First Amendment claim for denial of access to court. Id.

By Order entered December 5, 2014 (Docket Entry No. 37), the Court noted that review of
the case indicated that the Plaintiff had not yet returned service packets for the Defendants as the
Court directed in the Order entered September 30, 2014. The Court directed that the Clerk re-send
to the Plaintiff service packets for the Defendants and gave the Plaintiff thirty (30) days from entry
of the Order to return completed service packets for the Defendants. The Plaintiff was warned in
the December 5, 2014, Order that his failure to return the completed service packets within the time
required could jeopardize his prosecution of this action.
By Order entered March 10, 2015 (Docket Entry No. 50), the Court granted the Plaintiff’s
motion for an extension of time to return completed service packets and set a deadline of March 31,
2015, for the Plaintiff to return completed service packets to the Court so that process could issue
to the Defendants. The Plaintiff was again advised of the consequences of his failure to timely return
service packets.
The Plaintiff has not returned completed service packets as directed by the Court and the
Defendants have not been served in this action in the approximately seven months that have passed
since the Court’s initial order directing that the Plaintiff complete service packets for the Defendants.
Furthermore, although the Plaintiff was informed in the Order entered September 30, 2014, of his
obligation to keep the Court informed of his current address, his current location of incarceration is
unknown and the most recent mail sent to the Plaintiff at his last known address has been returned
as undeliverable. See Docket Entry Nos. 52 and 53.1
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After filing his lawsuit, the Plaintiff was transferred from the RCDC to the Criminal Justice
Center (“CJC”) in Nashville, Tennessee. On October 21, 2014, he pled guilty to two counts of mail
fraud, and, on January 30, 2015, he was sentenced to the custody of the United States Bureau of
Prisons to serve a term of sixty (60) months imprisonment. See Docket Entry Nos. 101 and 137,
United States of America v. John Fisher, No. 3:13-00091.
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Rule 4(m) of the Federal Rules of Civil Procedure requires that the Defendants be served
with process within 120 days of the date this action was filed and provides that, in the absence of a
showing of good cause by the plaintiff for why service has not been timely made, the Court "shall
dismiss" the action without prejudice. It is also well settled that Federal trial courts have the inherent
power to manage their own dockets, Link v. Wabash R.R. Co., 370 U.S. 626, 82 S.Ct. 1386,
8 L.Ed.2d 734 (1961), and Rule 41(b) of the Federal Rules of Civil Procedure permits the Court to
dismiss an action upon a showing of a clear record of delay, contumacious conduct, or failure to
prosecute by the plaintiff. See Carter v. City of Memphis, Tennessee, 636 F.2d 159, 161 (6th Cir.
1980). The Court has directed the Plaintiff on three occasions to return completed service packets
for the Defendants. The action cannot proceed in the absence of returned service packets from the
Plaintiff. Given the Plaintiff’s failure to take the steps necessary to serve the Defendants with
process, the Court finds that dismissal of the action is warranted.2

RECOMMENDATION
Accordingly, the Court respectfully RECOMMENDS that this action be DISMISSED
WITHOUT PREJUDICE in accordance with Rules 4(m) and 41(b) of the Federal Rules of Civil
Procedure.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of
Court within fourteen (14) days of service of this notice and must state with particularity the specific

2

This Report and Recommendation provides notice to the Plaintiff of the Court’s intention
to sua sponte dismiss the action under Rule 4(m), and the fourteen day period for filing objections
provides the Plaintiff with the opportunity to show good cause for why the Defendants have not been
served and why the action should not be dismissed.
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portions of this Report and Recommendation to which objection is made. Failure to file written
objections within the specified time can be deemed a waiver of the right to appeal the District
Court’s Order regarding the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140, 106
S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

Respectfully submitted,

JULIET GRIFFIN
United States Magistrate Judge

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