Kilpatrick v. O'Rourke et al

Filing 14

REPORT AND RECOMMENDATION: The Court respectfully RECOMMENDS this action be DISMISSED WITHOUT PREJUDICE in accordance with Rule 4(m) of the Federal Rules of Civil Procedure. Signed by Magistrate Judge Barbara D. Holmes on 2/15/2017. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

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

MICHAEL KILPATRICK
v.
JAMES O’ROURKE, et al.

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NO: 3:16-1840

TO: Honorable Kevin H. Sharp, Chief District Judge

REPORT AND RECOMMENDATION
By Order entered August 3, 2016 (Docket Entry No. 9), the Court referred this civil rights
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.
Michael Kilpatrick (“Plaintiff”) filed this action pro se and in forma pauperis on July 14,
2016, while a pretrial detainee in the custody of the Rutherford County Sheriff’s Department in
Murfreesboro, Tennessee. He alleges that on an unspecific date, he was shot by a Rutherford County
Sheriff’s Department Deputy and sustained injuries. He further alleges that he has been denied
medical care for these injuries while confined as a pretrial detainee.
In the Order of referral, the Court found that Plaintiff stated arguable claims under 42 U.S.C.
§ 1983 for violations of his federal constitutional rights and directed that the Clerk send Plaintiff
service packets for five of the named Defendants. Plaintiff was to complete the packets and return
them to the Court within twenty-eight (28) days of his receipt of the Order so that process could issue
to Defendants. The docket reflects that Plaintiff received the August 3, 2016, Order, but failed to
return completed service packets. By Order entered November 2, 2016 (Docket Entry No. 13), the

Court denied Plaintiff’s request for the appointment of counsel and advised Plaintiff that his lawsuit
might be dismissed if he failed to return completed service packets to the Clerk’s Office as he was
directed to do in the prior Order.
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. 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).
Plaintiff’s failure to return service packets to the Court has caused this action to lay dormant
for several months. Because process has not been served upon Defendants within the time required
by Rule 4(m), dismissal of this action is required.1

RECOMMENDATION
The Court respectfully RECOMMENDS this action be DISMISSED WITHOUT
PREJUDICE in accordance with Rule 4(m) of the Federal Rules of Civil Procedure.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of
Court within ten (10) days of receipt of this notice and must state with particularity the specific
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This Report and Recommendation provides notice to Plaintiff of the Court’s intention to
dismiss this action, and the fourteen day period for filing objections provides him with the
opportunity to show good cause why this 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,

BARBARA D. HOLMES
United States Magistrate Judge

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