Watson v. MDHA/HUD et al

Filing 66

REPORT AND RECOMMENDATION: For the foregoing reasons, the undersigned Magistrate Judge respectfully RECOMMENDS that: 1) the motions to dismiss of the Metropolitan Development and Housing Agency and James Harbison (Docket No. 34 ) and Vanderbilt University Medical Center (Docket No. 35 ) be GRANTED; and 2) this action be DISMISSED WITHOUT PREJUDICE in accordance with Rules 4(m) and 16(f)(1) of the Federal Rules of Civil Procedure. Signed by Magistrate Judge Barbara D. Holmes on 1/25/2017. (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

CARL E. WATSON1
v.
MDHA/HUD, et al.

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NO: 3:16-0719

TO: Honorable Waverly D. Crenshaw, Jr., District Judge

REPORT AND RECOMMENDATION
By Order entered May 18, 2016 (Docket No. 16), the Court referred this pro se action to the
Magistrate Judge for pretrial proceedings under 28 U.S.C. §§ 636(b)(1)(A) and (B), Rule 72(b) of
the Federal Rules of Civil Procedure, and the Local Rules of Court.
For the reasons set forth below, the undersigned Magistrate Judge respectfully recommends
that Defendants Metropolitan Development & Housing Agency’s and James Harbison’s Renewed
Motion to Dismiss for Insufficient Service of Process (Docket No. 34) and Defendant Vanderbilt
University Medical Center’s Motion to Dismiss for Insufficient Service of Process (Docket No. 35)
be GRANTED and further recommends that this entire action be DISMISSED WITHOUT
PREJUDICE.2
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Although Plaintiff filed his original complaint using both his first and middle names, he has
subsequently requested that only his middle initial be used in the style of this action. See Docket
Entry No. 43.
2

Also pending as a motion is Defendant Vanderbilt University Medical Center’s notice of
Plaintiff’s noncompliance and request for a ruling on its pending motion to dismiss (Docket No. 59),
which the undersigned Magistrate Judge further recommends be GRANTED.

Carl E. Watson (“Plaintiff”) filed this action pro se on April 7, 2016, see Complaint (Docket
No. 1), and later filed an “amended and corrected” petition on May 16, 2016. See Docket No. 15.
In a somewhat unclear manner, Plaintiff alleges a variety of claims, including claims for disability
discrimination and retaliation under the Americans with Disabilities Act and the Rehabilitation Act,
and names various defendants, including the Metropolitan Development and Housing Agency
(“MDHA”), MDHA Executive Director James Harbison (“Harbison”), the Vanderbilt University
Medical Center (“Vanderbilt”), the United States Department of Housing and Urban Development
(“HUD”), the United States Veterans Administration (“VA”), the Metropolitan Government of
Nashville and Davidson County (“Metro”), and several judicial courts and municipal agencies. Id.
By the Order of referral, the Clerk was directed to mail to Plaintiff blank summons for each
Defendant, and Plaintiff was advised of his responsibility to effect service of process in accordance
with the Federal Rules of Civil Procedure within 90 days after the filing of his complaint. See
Docket No. 16
In July 2016, Defendant Vanderbilt and Defendants MDHA and Harbison filed separate
motions to dismiss based on insufficient service of process, asserting that they had not been served
with process in the action. See Docket Nos. 34 and 35. Upon his motion, the Court granted Plaintiff
an extension of time to September 20, 2016, within which to effect service of process upon
Defendants. Plaintiff was specifically advised that his failure to serve Defendants as directed may
result in a recommendation that all or some of the Defendants be dismissed. See Order entered
August 6, 2016 (Docket No. 39). Because of a lack of clarity in Plaintiff’s pleadings, the Court also
directed Plaintiff to file an amended complaint by August 26, 2016, that clearly and succinctly sets
out: 1) his legal claims; 2) the specific Defendants implicated in each claim; and 3) the factual
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allegations made against each Defendant that support his claims. Id. By Order entered August 26,
2016, the Court extended the deadline to file the amended complaint to September 26, 2016. See
Docket No. 48.
Although Plaintiff thereafter filed several motions and appeals about various matters, see
Docket Nos. 49-58 and 62-63, he failed to file an amended complaint. The docket also does not
reflect that any Defendant has been served with process. Defendant Vanderbilt has filed a request
to have its pending motion to dismiss ruled on by the Court. See Notice of Noncompliance (Docket
No. 59). Although Plaintiff has not responded directly to the notice filed by Defendant Vanderbilt,
he has filed a motion for leave of court, the intent of which is not entirely clear but which can be
liberally construed as a request for additional time. See Docket No. 61.
Rule 4(m) of the Federal Rules of Civil Procedure requires that Defendants be served with
process within 90 days of the date this action was filed and provides that, in the absence of a showing
of good cause by Plaintiff for why service has not been timely made, the Court "must dismiss" the
action without prejudice. Additionally, Rule 16(f)(1) of the Federal Rules of Civil Procedure
provides that “on motion or on its own, the Court may issue any just orders, including those
authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party . . . (C) fails to obey a scheduling or other pretrial
order.” Pursuant to Rule 37(b)(2)(A)(v), the Court may dismiss an action as a sanction.
Plaintiff has twice been specifically advised of his responsibility to timely serve Defendants
with process. See Orders entered May 18, 2016, and August 8, 2016. The Court has also provided
him with an extension of time to September 20, 2016, to fulfill this requirement, and the subsequent
passage of time has provided Plaintiff with an effective extension of approximately 70 additional
days to fulfill this requirement. However, to date, despite the passage of several months past the
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90 day period allowed by Rule 4(m), Plaintiff has not shown that process has been served upon any
Defendant in this action. Further, although he has filed a motion for leave, he has not shown good
cause for his failure to satisfy this obligation. Accordingly, dismissal of the action under Rule 4(m)
is warranted. Plaintiff’s failure to comply with the Court’s specific directive that he file an amended
complaint also warrants a sanction under Rule 16(f). This action is effectively at an impasse because
of Plaintiff’s conduct, and the Court notes that, despite Plaintiff’s failure to serve Defendants with
process and to file an amended complaint, he has nonetheless found the time and ability to make
numerous other filings in the action. While the Court recognizes Plaintiff's status as a pro se litigant
requires that he be afforded a certain measure of leniency, this lenient treatment has limits. Pilgrim
v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996). Plaintiff's pro se status does not relieve him from
basic procedural obligations. See Fields v. Cnty. of Lapeera, 2000 WL 1720727, *2 (6th Cir. Nov. 8,
2000).

RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge respectfully RECOMMENDS
that:
1) the motions to dismiss of the Metropolitan Development and Housing Agency and James
Harbison (Docket No. 34) and Vanderbilt University Medical Center (Docket No. 35) be
GRANTED; and
2) this action be DISMISSED WITHOUT PREJUDICE in accordance with Rules 4(m) and
16(f)(1) of the Federal Rules of Civil Procedure.

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ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of
Court within fourteen (14) days of service of the Report and Recommendation and must state with
particularity the specific 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,

BARBARA D. HOLMES
United States Magistrate Judge

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