Harris v. Davidson County Sheriff et al

Filing 135

REPORT AND RECOMMENDATION : The Magistrate Judge recommends that the case against this Defendant be dismissed without prejudice and that any appeal from such a decision not be certified as taken in good faith. 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 o bjections filed in this Report in which to file any responses to said objections. Signed by Magistrate Judge Joe Brown on 6/15/16. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
VAUGHN HARRIS,

)
)
Plaintiff
)
)
v.
)
)
DAVIDSON COUNTY SHERIFF, et al., )
)
Defendants
)
TO:

No. 3:15-0356
Chief Judge Sharp/Brown
Jury Demand

THE HONORABLE KEVIN H. SHARP
REPORT AND RECOMMENDATION
For

the

reasons

stated

below,

the

Magistrate

Judge

recommends that the claims against Defendant A. Hayes be dismissed
without prejudice for failure to obtain service and to prosecute by
the Plaintiff, and that any appeal from a decision dismissing this
Defendant not be certified as taken in good faith.
BACKGROUND
The Plaintiff filed a complaint on April 1, 2015, against
a number of Defendants, including A. Hayes. The case was initially
allowed to pursue only against Correct Care Solutions (Docket Entry
3). The Plaintiff was subsequently allowed to amend his complaint
(Docket Entry 12-1) in which he named A. Hayes as Defendant 10. The
Magistrate Judge subsequently prepared a report and recommendation
(Docket Entry 35) on June 18, 2015, recommending dismissal of a
number of the Plaintiff’s claims, another order allowing an amended
complaint (Docket Entry 36), and finally an order directing the
Clerk to send the Plaintiff a service packet for a number of
Defendants, including A. Hayes (Docket Entry 37). Since the entries

of Docket Entries 35, 36 and 37 on June 18, 2015, it does not
appear that the Plaintiff ever returned a service packet for
service on Hayes.
On May 10, 2016 (Docket Entry 123), the Magistrate Judge
notified the Plaintiff that no service had been made on Hayes and
that he needed to provide a service packet or the Defendant would
be dismissed from the case. As of the date of this report and
recommendation nothing further has been received from the Plaintiff
concerning Defendant Hayes.
LEGAL DISCUSSION
Rule 4(m)1 of the Federal Rules of Civil Procedure is
clear that 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. If the plaintiff can show good cause for the failure, the
court must extend the time for service for an appropriate period of
time.
In this case it has been close to a year and service of
process has not been obtained on this Defendant and the Plaintiff,
despite being warned, has taken no action to complete service of
process. Under these circumstances, the Magistrate Judge believes
that dismissal without prejudice is required. Tetro v. Elliott
Popham Pontiac, 173 F.3d 988 (6th Cir. 1999).

1

The rule was changed to allow only 90 Days December 1, 2015.

2

In accordance with the Sixth Circuit’s direction in this
case, the Magistrate Judge concludes that the Plaintiff’s failure
to complete service of process on this Defendant, after being
specifically warned of its necessity is willful, and without
service of process the case cannot proceed against this Defendant,
and due to the passage of time it will be more difficult for this
Defendant to respond to the allegations against him. The Plaintiff
has been warned of the necessity from the beginning of this case
(Docket Entries 130, 123) of the consequences of failing to obtain
service on this Defendant. The magistrate judge will recommend the
lesser sanction of dismissal without prejudice2.

A court must be

able to control its docket and move cases forward.
RECOMMENDATION
For

the

reasons

stated

above,

the

Magistrate

Judge

recommends that the case against this Defendant be dismissed
without prejudice and that any appeal from such a decision not be
certified as taken in good faith.
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.

2

Even if the dismissal is without prejudice the statute of
limitation of one year may prevent the filing of a new complaint against
this defendant.

3

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 16th day of June, 2016.
/s/
Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

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