Waddle v. TDOC et al

Filing 20

REPORT AND RECOMMENDATION: The Magistrate Judge RECOMMENDS for the reasons explained above that: 1) this action be DISMISSED WITHOUT PREJUDICE; 2) acceptance and adoption of this R&R constitute the FINAL JUDGMENT in this action; 3) any pending moti ons be TERMINATED AS MOOT; 4) any appeal NOT BE CERTIFIED as taken in good faith under 28 U.S.C. § 1915(a)(3). The parties have fourteen (14) days of being served with a copy of this R&R to serve and file written objections to the findings and recommendation proposed herein. A party shall respond to the objecting party's objections to this R&R within fourteen (14) days after being served with a copy thereof. Failure to file specific objections within fourteen (14) days of receipt of this R&R may constitute a waiver of further appeal. Signed by Magistrate Judge Joe Brown on 7/31/2018. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
BOBBY WADDLE,
Plaintiff,
v.
TENNESSEE DEPARTMENT
OF CORRECTION, ET AL.,
Defendants.

)
)
)
)
)
)
)
)
)
)

No. 3:17-00372
Judge Campbell/Brown

To: The Honorable William L. Campbell, Jr., United States District Judge.
REPORT AND RECOMMENDATION
The Magistrate Judge RECOMMENDS for the reasons explained below that: 1) this action
be DISMISSED WITHOUT PREJUDICE; 2) acceptance and adoption of this Report and
Recommendation (R&R) constitute the FINAL JUDGMENT in this action; 3) any pending motions
be TERMINATED AS MOOT; 4) any appeal NOT BE CERTIFIED as taken in good faith under
28 U.S.C. § 1915(a)(3).
I. STATEMENT OF THE CASE
Plaintiff brought this pro se action (hereinafter “this case”) on February 16, 2017 under 42
U.S.C. § 1983. (Doc. 1) Plaintiff was incarcerated in the Trousdale Turney Correctional Center in
Hartsville, Tennessee at the time he filed his complaint in this case. Plaintiff noticed the court on
March 15, 2017 that he had been transferred to the Bledsoe County Correctional Complex in
Pikeville, Tennessee. (Doc. 3) The court entered a deficiency order on March 17, 2017, provided
plaintiff with a blank application to proceed in forma paupers (IFP), and instructed him to complete
and submit the application if he sought to proceed without paying the civil filing fee. (Doc. 4)
Attorney Melissa Morris filed a notice of appearance in this case on April 15, 2017, fiftynine days after plaintiff filed his complaint. (Doc. 7) That same day, Attorney Morris filed a motion

to stay this case until the District Judge in an earlier filed case – Case No. 3:15-01309 – ruled on
plaintiff’s motion to amend his complaint in that case.1 (Doc. 9) Plaintiff averred that he would
file a notice of voluntary dismissal in this case if his motion to amend were granted in Case No.
3:15-01309. (Doc. 9) The original District Judge in this case granted plaintiff’s motion to stay on
April 20, 2017, but held the stay in abeyance pending plaintiff submitting the full civil filing fee or
a properly completed application to proceed IFP. (Doc. 10) Plaintiff filed an application to proceed
IFP on May 24, 2017 (Doc. 14) that was granted on June 26, 2017 (Doc. 15).
The District Judge in Case No. 3:15-01309 ultimately determined that plaintiff’s motion to
amend was futile, and dismissed that case on April 30, 2018. (Case No. 3:15-01309, Doc. 226, pp.
5-6) The District Judge in Case No. 3:15-01309 also ordered that a copy of plaintiff’s motion to
amend in that case (Case No. 3:15-01309, Doc. 176), and the R&R on which the order of dismissal
was based (Case No. 3:15-01309, Doc. 223), be filed in this case. (Case No. 3:15-01309 Doc. 226,
p. 6) The R&R was filed in this case on December 15, 2017 (Doc. 16), and the motion to amend on
May 2, 2018 (Doc. 17). Attorney Morris took no further action in Case No. 3:15-01309 after
objecting on December 31, 2017 to the R&R upon which the order of dismissal was based in that
case. (Case No. 3:15-01309, Doc. 224)
The original presiding judge in this case transferred this case to District Judge William L.
Campbell on May 9, 2018. (Doc. 18)2 Thereafter, this case was referred to the undersigned on May
11, 2018 for “consideration of all pretrial matters,” and to “submit proposed findings of fact and
recommendations” as to “[a]ny dispositive motions. . . .” (Doc. 19)
1

Attorney Morris was appointed plaintiff’s counsel in Case No. 3:15-01309 on February 16, 2017 (Case No.
3:15-01309, Doc. 146), and as such, she was the attorney of record in both that case and this case at all times relevant
to the matter addressed in this R&R.
2

The undersigned notes for the record that an initial frivolity review has not yet been conducted in this case
as required under 42 U.S.C. 1915A.

2

II. ANALYSIS
The undersigned notes upon reviewing the record that the defendants in this case have not
been served in the 1 year 5-plus months since plaintiff filed his complaint. The Federal Rules of
Civil Procedure in effect at the time plaintiff filed his complaint provide the following with respect
to service of process:
If a defendant is not served within 90 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. But if the plaintiff
shows good cause for the failure, the court must extend the time for
service for an appropriate period. . . .
Rule 4(m), Fed.R.Civ.P. (bold added) Given the filing date of February 16, 2017 in this case
plaintiff was required under Rule 4(m) to have served process not later than May 17, 2017. “Due
process requires proper service of process for a court to have jurisdiction to adjudicate the rights of
parties.” O.J. Distrib., Inc. v. Hornell Brewing Co., Inc., 340 F.3d 345, 353 (6th Cir. 2003). More
particularly, proper service of process is a prerequisite to the court gaining personal jurisdiction over
the defendants. Friedman v. Estate of Presser, 929 F.2d 1151, 1156-57 (6th Cir. 1991)(citation
omitted). “[A]ctual knowledge and lack of prejudice cannot take the place of legally sufficient
service.” LSJ Inv. Co. v. O.L.D., Inc., 167 F.3d 320, 324 (6th Cir. 1999)(citations omitted).
A plaintiff bears the burden under Rule 4(m) to establish that there was “good cause” if
process is not served within 90 days of filing his complaint. See Nafzinger v. McDermott Int’l, Inc.,
467 F.3d 514, 521 (6th Cir. 2006)(citing Habib v. Gen. Motors Corp., 15 F.3d 72, 73 (6th Cir. 1994)).
To establish “good cause” under Rule 4(m), plaintiff must show “excusable neglect.” See Nafzinger,
467 F.3d at 521-23; see also Turner v. City of Taylor, 412 F.3d 629, 649-50 (6th Cir. 2005)(applying
excusable neglect standard to “good cause” analysis under Rule 4(m)). Whether neglect is excusable
is an equitable determination that takes into account “all relevant circumstances surrounding the
3

party’s omission.” Turner, 412 F.3d at 650 (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd
P’Ship,507 U.S. 380, 395 (1993)). This standard “has consistently been held to be strict, and can
be met only in extraordinary circumstances.” Turner, 412 F.3d at 650 (quoting Marsh v.
Richardson, 873 F.2d 129, 130 (6th Cir. 1989)). To assess a claim of excusable neglect, the court
considers the neglect of both the party and the party’s counsel. McCurrey ex rel. Turner v. Adventist
Health Sys./Sunbelt, Inc., 298 F.3d 586, 594-95 (6th Cir. 2002)(citing Pioneer,507 U.S. at 397). In
so doing, “clients [are] held accountable for the acts and omissions of their attorneys.” Pioneer, 507
U.S. at 396-97.
As previously established above at pp. 1-2 and n. 1, attorney Morris was plaintiff’s counsel
in both Case No. 3:15-01309 and this case. A review of the record in Case No. 3:15-01309 reveals
that Attorney Morris prosecuted that earlier action actively from the time plaintiff filed his complaint
in this case on February 16, 2017 until December 31, 2017 when she objected to the R&R on which
the court based its order of dismissal in Case No. 3:15-01309. (Case No. 3:15-01309, Docs. 147-48,
150, 154, 160, 167, 176, 178, 185-86, 198, 201-04, 209, 211-15, 216-19, 224) Attorney Morris has
taken no action in either Case No. 3:15-01309 or this case in the 213 days since.
Given the record of attorney Morris’s representation in Case No. 3:15-01309, plaintiff cannot
rely on any impediment to his ability to prosecute as grounds to establish “good cause” in this case.
Indeed, plaintiff’s only possible “good cause” theory is that the court stayed this case pending a
ruling on plaintiff’s motion to amend in Case No. 3:15–01309. Friedman, quoted below in relevant
part, is instructive with respect to such a theory:
Plaintiffs . . . argued below that the district court’s ‘stay of all
proceedings’ issued on November 2, 1987 and lifted on March 8,

4

1989 tolled the 120-day period[3] because service of process is a
‘proceeding’ and plaintiffs, therefore, were barred from serving
defendants during the period of the stay. By excluding the days the
proceeding were tolled, plaintiffs contended that their personal
service of process under Rule 4(d) was completed within the 120-day
period required by Rule 4(j).
Without personal jurisdiction over an individual, however, a court
lacks all jurisdiction to adjudicate that party’s right, whether or not
the court has valid subject matter jurisdiction. . . . In other words . .
. the district court’s . . . stay was nullified, as the court had not yet
acquired in personam jurisdiction over any defendant. . . . The
district court was as powerless to issue orders affecting defendants as
it was powerless to issue orders affecting any other . . . party.
Accordingly, the stay did not toll the 120-day period for service of
process. We therefore find that plaintiffs did not effect personal
service of process . . . within the required 120-day period.
Friedman, 929 F.2d at 1156-57 (internal citations and footnotes omitted).
As shown in the excerpt from Friedman above, the stay entered in this case was “nullified”
because the court had not yet acquired personal jurisdiction over the defendants. Because it was
“nullified,” the stay did not provide “good cause” in and of itself for plaintiff’s failure to perfect
service of process. Moreover, attorney Morris should have been aware of both the procedural
requirements under Rule 4(m), as well as the potential consequences under the law for failing to
comply with those requirements. In short, attorney Morris’s failure to affect service of process does
not constitute excusable neglect. As previously established, attorney Morris’s neglect is imputed
to plaintiff. Pioneer, 507 U.S. at 396-97. For these reasons, the undersigned recommends that this
case be dismissed without prejudice.

3

The time to serve process under the Federal Rules of Civil Procedure when Friedman was decided was 120
days. See Rule 4, Fed.R.Civ.P. (H.R. 7154 – Federal Rules of Civil Procedure Amendments Act 1982, W§ 5 – Time
Limits) The time to serve process was reduced from 120 days to 90 days in 2015. See Rule 4, Fed.R.Civ.P. (2015
Amendment (Subdivision (m)). The time to serve process in effect when plaintiff filed his complaint in this case was
90 days.

5

III. CONCLUSION
AND
RECOMMENDATIONS
The Magistrate Judge RECOMMENDS for the reasons explained above that: 1) this action
be DISMISSED WITHOUT PREJUDICE; 2) acceptance and adoption of this R&R constitute the
FINAL JUDGMENT in this action; 3) any pending motions be TERMINATED AS MOOT; 4)
any appeal NOT BE CERTIFIED as taken in good faith under 28 U.S.C. § 1915(a)(3).
The parties have fourteen (14) days of being served with a copy of this R&R to serve and
file written objections to the findings and recommendation proposed herein. A party shall respond
to the objecting party’s objections to this R&R within fourteen (14) days after being served with a
copy thereof. Failure to file specific objections within fourteen (14) days of receipt of this R&R
may constitute a waiver of further appeal. Thomas v. Arn, 474 U.S. 140, 142, reh’g denied, 474 U.S.
111 (1986); see Alspaugh v. McConnell, 643 F.3d 162, 166 (6th Cir. 2011).
ENTERED this the 31st day of July, 2018.

/s/ Joe B. Brown
Joe B. Brown
United States Magistrate Judge

6