Primm v. Tennessee Department of Correction et al

Filing 17

REPORT AND RECOMMENDATION: The undersigned Magistrate Judge recommends that Defendant's motion to dismiss (Docket Entry No. 12) be denied, that the Clerk be directed to issue summons for the Defendant, and that a summons and a copy of the amended complaint be served upon Defendant by the U.S. Marshal. Signed by Magistrate Judge John S. Bryant on 2/22/2016. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
CAROLYN PRIMM,

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Plaintiff
v.
TENNESSEE DEPARTMENT OF
CORRECTION, et al.,
Defendants
TO:

No. 3:15-0230
Senior Judge Nixon/Bryant
Jury Demand

THE HONORABLE JOHN T. NIXON
SENIOR DISTRICT JUDGE
REPORT AND RECOMMENDATION
Defendant Tennessee Department of Correction (“TDOC”) has

filed its motion to dismiss the amended complaint for insufficient
service of process (Docket Entry No. 12). Plaintiff Primm has filed
a reply in opposition (Docket Entry No. 16). For the reasons stated
below, the undersigned Magistrate Judge finds that Defendant’s motion
to dismiss should be denied.
STATEMENT OF THE CASE
Plaintiff Carolyn Primm, who is proceeding pro se and in
forma pauperis, has filed this action against Defendant TDOC alleging
employment discrimination pursuant to Title VII of the Civil Rights
Act of 1964 and other statutes (Docket Entry No. 1).
ANALYSIS
Defendant TDOC, through counsel, has filed its motion to
dismiss

pursuant

to

Federal

Rule

of

Civil

Procedure

12(b)(5),

asserting insufficient service of process. Specifically, Defendant

states that no summons has been issued or served on TDOC or any named
Defendant (Docket Entry No. 12-1 at 3). From a review of the record,
it appears that Defendant is correct .
In her response, Plaintiff argues that service of process
for a Plaintiff who has been granted in forma pauperis status is to
be served by the U.S. Marshal. 28 U.S.C. § 1915(d); Byrd v. Stone, 94
F.3d 217 (6th Cir. 1996). Plaintiff also is correct.
It

appears

that

on

May

13,

2015,

the

Court

granted

Plaintiff’s application for leave to proceed in forma pauperis
(Docket Entry No. 4). This order further granted Plaintiff 21 days
within which to file a copy of a right-to-sue letter from the EEOC.
Thereafter, Plaintiff Primm timely filed a copy of her right-to-sue
letter

(Docket

Entry

No.

7-1),

whereupon

the

Court

granted

Plaintiff’s motion for leave to file an amended complaint, dismissed
the complaint against certain individual Defendants, and referred the
case to the undersigned Magistrate Judge to enter a scheduling order
as well to conduct further proceedings as necessary (Docket Entry No.
8). Regrettably, it appears that the Court has neglected to direct
the Clerk to issue summons for the Defendants to the U.S. Marshal for
service of process.
For the reasons stated above, the undersigned Magistrate
Judge finds that Defendant’s motion to dismiss should be denied, that
the Clerk should be directed to a issue summons for each Defendant

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and that service of process of the summons and amended complaint
should be made upon Defendants by the U.S. Marshals.
RECOMMENDATION
For the reasons state above, the undersigned Magistrate
Judge recommends that Defendant’s motion to dismiss (Docket Entry No.
12) be denied, that the Clerk be directed to issue summons for the
Defendant, and that a summons and a copy of the amended complaint be
served upon Defendant by the U.S. Marshal.
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 22nd day of February, 2016.
/s/ John S. Bryant
JOHN S. BRYANT
United States Magistrate Judge

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