Reeves v. Correctional Corporation of America, (CCA) et al

Filing 39

MEMORANDUM and ORDER. The court OVERRULES the objections ( 36 ) and accepts the magistrate judge's recommendation. The claims against defendants Cynthia Pratt, Nurse f/n/u Scott, Joseph Schweiter, Nurse f/n/u Taylor, and Nurse f/n/u Dotts are DI SMISSED WITHOUT PREJUDICE. The claims against defendant Scott Schuch remain pending, and this matter remains on referral to the magistrate judge. Signed by District Judge Aleta A. Trauger on 12/3/19. (xc:Pro se party by regular mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(gb)

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

OCTAIVIAN D. REEVES,
Plaintiff,
v.
CORRECTIONS CORPORATION OF
AMERICA et al.,
Defendants.

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Case No. 3:18-cv-00029
Judge Aleta A. Trauger

MEMORANDUM and ORDER
Before the court is plaintiff Octavian Reeves’s “Petition in Response to Report and
Recommendation” (Doc. No. 36), which the court construes as objections to the magistrate judge’s
October 16, 2019 Report and Recommendation (“R&R”) (Doc. No. 32), to which defendant Scott
Schuch has filed a Response (Doc. No. 38). The R&R recommends that all claims against
defendants Cynthia Pratt, Nurse f/n/u Scott, Joseph Schweiter, Nurse f/n/u Taylor, and Nurse f/n/u
Dotts (collectively, the “unserved defendants”) be dismissed without prejudice under Rule 4(m)
of the Federal Rules of Civil Procedure, based on the plaintiff’s failure to effect timely service of
process upon these defendants. For the reasons set forth herein, the court will overrule the
plaintiff’s objections and accept the magistrate judge’s recommendation.
I.

FACTUAL AND PROCEDURAL BACKGROUND
Reeves, an inmate in the custody of the Tennessee Department of Corrections and currently

incarcerated at the Morgan County Correctional Complex, filed this lawsuit on January 8, 2018,
asserting claims under 42 U.S.C. § 1983 for alleged violations of his constitutional rights in 2016
and 2017, when he was at the Trousdale Turner Correctional Center (“TTCC”) in Hartsville,

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Tennessee. (Compl., Doc. No. 1.) He originally asserted claims against Corrections Corporation
of America (“CCA), Nurse Cynthia Pratt, and Nurse f/n/u Scott.
Upon conducting an initial review of the Complaint under the Prison Litigation Reform
Act, the court dismissed the claims against CCA but allowed those against Pratt and Scott to
proceed. (Doc. Nos. 10, 11.) The matter was referred to the magistrate judge. As part of the referral
order, the court directed the Clerk of Court to mail to the plaintiff service packets for both
defendants and notified the plaintiff that he was required to complete and return the packets to the
court within 21 days. (Doc. No. 11.)
The plaintiff returned service packets for Pratt and for Scott Schuch, rather than for Nurse
f/n/u Scott. At that time, Schuch was not named as a defendant in the case. The summons was
returned unexecuted by Pratt, with a notification that she was not employed by Trousdale Turner
Correctional Facility but by Correct Care Solutions. (Doc. No. 14, at 1.)
The plaintiff filed an Amended Complaint in October 2018, again naming Cynthia Pratt
and f/n/u Scott as defendants but also naming new defendants, including Scott Schuch, Joseph
Schweiter, and Nurse f/n/u Taylor. (Doc. No. 13.) In March 2019, the magistrate judge reviewed
the Amended Complaint and directed the Clerk of Court to mail six service packets to the plaintiff.
The plaintiff returned the service packets, and summonses were issued. The only summons
returned as executed was that for Scott Schuch, for whom counsel later entered notices of
appearance and filed an Answer to the Amended Complaint. The summonses for the other
defendants were returned unexecuted. The returns for all five unserved defendants indicate that
they are either no longer employed at the facility or not employed by the “organization.” (Doc.
Nos. 23–26.) The plaintiff thereafter made no apparent effort to effect service of process upon the
unserved defendants.

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In July 2019, the magistrate judge entered a case management order. (Doc. No. 28.) On
August 8, 2019, almost ten months after the filing of the Amended Complaint, the magistrate judge
entered an Order advising the plaintiff that the five unserved defendants were subject to dismissal
under Rule 4(m) of the Federal Rules of Civil Procedure because they had not been served within
90 days of the filing of the Amended Complaint. The order notified the plaintiff that the magistrate
judge would recommend dismissal of the unserved defendants unless the plaintiff either provided
new addresses for service of process upon those defendants no later than August 30, 2019 or
showed cause why they had not yet been served. (Doc. No. 29.)
In a Motion for Extension of Time to Complete Brief in a Civil Action dated September
15, 2019 and received by the court on September 19, the plaintiff asked for a “60 day extension of
time due to the fact Plaintiff is unable to locate several of the defendants . . . in order to complete
Plaintiff’s Brief in a timely fashion.” (Doc. No. 30, at 2.)
In the R&R entered on October 16, 2019, the magistrate judge noted that the plaintiff’s
motion did not comply with the August 8 Order, because it was not filed by August 30 and the
plaintiff neither provided new addresses for the unserved defendants nor attempted to show
cause—that is, explain—why he had not yet served them. While recognizing the difficulties faced
by incarcerated plaintiffs in litigating their cases, the magistrate judge recommends dismissal
without prejudice of all claims against the five unserved defendants (Cynthia Pratt, Nurse f/n/u
Scott, Joseph Schweiter, Nurse f/n/u Taylor, and Nurse f/n/u Dotts) under Rule 4(m) of the Federal
Rules of Civil Procedure.
The plaintiff thereafter filed his “Petition in Response to Report and Recommendation.”
(Doc. No. 36.) In this filing, he appears to be attempting to excuse his untimely response to the
R&R and his failure to provide new addresses for the unserved defendants by providing the dates

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during which he was in “High Security Segregation” and had no access to the law library. He was
in segregation for ninety days beginning January 25, 2018, shortly after filing the lawsuit, and then
between August 25–31, 2019, September 12–17, 2019, and October 16–23, 2019. He also states
that he explained in his lawsuit that he suffers from mood swings and depression because he does
not regularly receive his necessary medication. Finally, he asks the court to direct Corrections
Corporation of America (which is no longer a defendant), Correct Care Solutions (which has never
been named as a defendant), and defendant Scott Schuch to provide the plaintiff with addresses
for the remaining defendants.
Defendant Schuch’s Response to the plaintiff’s objections argues that they are procedurally
insufficient and fail to provide any substantive justification for further delaying progression of the
case. (Doc. No. 38.)
II.

STANDARD OF REVIEW
The standard of review to be employed by the court when examining a Report and

Recommendation is set forth in 28 U.S.C. § 636. A district court judge reviews de novo the portions
of the R&R to which proper objections have been filed. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.
72(b). Only those objections that are sufficiently specific are entitled to a de novo review under
the statute. See Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986) (per curiam) (holding that the
district court need not provide de novo review where the objections are frivolous, conclusive or
too general, because the burden is on the parties to “pinpoint those portions of the magistrate’s
report that the district court must specifically consider”). Where the objections are not sufficiently
specific, the court may treat any objections as having been waived. Accord Daniels v. Colvin, No.
3:14-CV-546, 2016 WL 792416, at *1 (E.D. Tenn. Feb. 29, 2016) (citing VanDiver v. Martin, 304
F. Supp. 2d 934, 937 (E.D. Mich. 2004)). On review, the district court judge may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28

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U.S.C. § 636(b) (1); Fed. R. Civ. P. 72(b).
III.

DISCUSSION
The plaintiff’s objections are timely, but they are not sufficiently specific to warrant de

novo review. The plaintiff appears to argue only that being placed in segregation prevented him
from filing a timely response to the magistrate judge’s August 8 Order. This explanation is too
little too late. The plaintiff’s lawsuit was filed in early 2018 and is based on events that took place
in 2016 and 2017. The Amended Complaint was filed in October 2018. While the timing of the
plaintiffs’ being in segregation at the end of August might excuse his failure to respond to the
August 8 Order by August 30, it does not explain his failure, at that time, actually to explain what
efforts he had made to locate and serve the unserved defendants. The court finds, on de novo
review, that the dismissal of the unserved defendants is warranted under Rule 4(m).
IV.

CONCLUSION AND ORDER
For the reasons set forth herein, the court OVERRULES the objections (Doc. No. 36) and

accepts the magistrate judge’s recommendation. The claims against defendants Cynthia Pratt,
Nurse f/n/u Scott, Joseph Schweiter, Nurse f/n/u Taylor, and Nurse f/n/u Dotts are DISMISSED
WITHOUT PREJUDICE under Rule 4(m) of the Federal Rules of Civil Procedure.
The claims against defendant Scott Schuch remain pending, and this matter remains on
referral to the magistrate judge.
It is so ORDERED.

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ALETA A. TRAUGER
United States District Judge