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Gray v. Geo Group Inc.

United States District Court, W.D. Oklahoma

January 24, 2019

FREDERICK RIDEOUT GRAY, JR., Plaintiff,
v.
GEO GROUP INC., et al., Defendants.

          REPORT AND RECOMMENDATION

          BERNARD M. JONES UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, a state prisoner proceeding pro se and in forma pauperis, filed an Amended Complaint pursuant to 42 U.S.C. § 1983 alleging numerous violations at the Lawton Correctional Facility (LCF), [Doc. No. 34]. United States District Judge Stephen P. Friot has referred the matter for proposed findings and recommendations consistent with 28 U.S.C. § 636(b)(1)(B) and (C). Defendant Musallam[1] has filed a Motion to Dismiss arguing that he was not properly served within the ninety-day service window, [Doc. No. 89], and Plaintiff has filed a Response, [Doc. No. 101]. For the reasons set forth below, the Court should deny the motion.

         I. Standard of Review

         Defendant Musallam seeks dismissal under Fed.R.Civ.P. 12(b)(5). See Mot. at 3. A “Rule 12(b)(5) motion challenges the mode of delivery or the lack of delivery of the summons and complaint.” 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure 3D § 1353. “In opposing a Rule 12(b)(5) motion, the plaintiff bears the burden of showing that he or she has ‘complied with all statutory and due process requirements.'” Smith v. Allbaugh, No. CIV 16-654-G, 2018 WL 5114146, at *1 (W.D. Okla. Oct. 19, 2018) (unpublished district court order) (citation omitted). On this issue, “[t]he parties may submit affidavits and other documentary evidence for the court's consideration, and plaintiff is entitled to the benefit of any factual doubt.” Craig v. City of Hobart, No. CIV-09-0053-C, 2010 WL 680857, at *1 (W.D. Okla. Feb. 24, 2010) (unpublished district court order).

         II. Analysis

         Although appearing pro se, Plaintiff was responsible for serving Defendant Musallam with a summons and the Amended Complaint. See Fed. R. Civ. P. 4(c)(1); see also DiCesare v. Stuart, 12 F.3d 973, 980 (10th Cir. 1993) (stating that even though plaintiff was pro se, he was “obligated to follow the requirements of Fed.R.Civ.P. 4” (citation omitted)). Relevant here, he could do so by “delivering a copy of each to an agent authorized by appointment or by law to receive service of process.” Fed.R.Civ.P. 4(e)(2)(C).

         Plaintiff alleged that Defendant Musallam is LCF's resident physician, [Doc. No. 34, at 6], and he provided the U.S. Marshals Service with the LCF prison address for purposes of service. The U.S. Marshals Service then executed service on Defendant Musallam by leaving a copy with “Holmstrom Exec. Assnt.” [Doc. No. 58, at 9]. However, Defendant Musallam claims that “Brittany Holmstrom, the Executive Assistant of Lawton Correctional Facility, is not an officer, managing or general agent, or an agent authorized to received service of process on behalf of Defendant Musallam.” Mot. at 3. The Court judicially notices that Ms. Holmstrom accepted service for nine other LCF employees the same day. See [Doc. No. 58, at 1-8, 10].

         Although Plaintiff bears the initial burden, the Court finds that he has “filed [an executed] return of service, . . . and is ‘entitled to the benefit of any factual doubt.'” Driskell v. Thompson, No. 12-CV-03107-REB-KLM, 2013 WL 5835114, at *4 (D. Colo. Oct. 30, 2013) (unpublished order adopting report and recommendation). More importantly, Defendant Musallam “fails to provide an affidavit or other offer of proof to support his claim that Ms. [Holmstrom] is incapable of accepting service on his behalf. The Court cannot accept Defendant's unsupported allegations as fact.” Id. Accordingly, the Court recommends that Defendant Musallam's Motion to Dismiss be denied. See Id. (adopting the magistrate judge's conclusion that “without an affidavit or other acceptable support for Defendant's allegation regarding Ms. Howell's authorization to receive service [on his behalf], the Court respectfully recommends that the District Judge deny Defendant's Motion to Dismiss pursuant to Rule 12(b)(5)”).

         RECOMMENDATION

         For the reasons discussed above, the Court should deny Defendant Musallam's Motion to Dismiss, [Doc. No. 89]. Should the Report and Recommendation be adopted, the Court further recommends that Defendant Musallam be ordered to answer or otherwise respond to the Amended Complaint within twenty days of the adoption order.

         NOTICE OF RIGHT TO OBJECT

         The parties are advised of their right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by February 14, 2019. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. See Moore v. United States, 950 F.2d 656 (10th Cir. 1991).

         STATUS OF REFERRAL

         This Report and Recommendation does not terminate the referral by the ...


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