United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION PLAINTIFF'S FAILURE TO
SERVE DEFENDANT CAIN
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
April 24, 2018, the undersigned ordered Ezekiel Davis
(Plaintiff) to serve certain Defendants, see
Doc. 69, at 2 ¶ 8, including one whom he had named in
his amended complaint as John Doe, podiatrist and director of
Lawton Foot Clinic. See Doc. 20, at 6. The undersigned
informed Plaintiff that he must do so in accordance with
Fed.R.Civ.P. 4 and cautioned that “[s]ervice must be
complete within ninety (90) days from the date of this Order
[and that] failure to achieve service within that timeframe
could result in the court dismissing the action.”
See Doc. 69, at 2-3 ¶ 8.
11, 2018, Plaintiff, who by that time had identified
Defendant podiatrist John Doe by name, requested that summons
be issued for “Bryan Cain, Director Lawton Foot Clinic
(John Doe (1)).” Doc. 70, at 2. He also provided the
following “Address for Service”: Correct Care
Solution, 1283 Murfreesboro, Suite 500, Nashville, TN 37217.
Id. And on the summons itself, Plaintiff entered
that same information when prompted to supply
“Defendant's name and address.” Doc.
71, at 13.
August 7, 2018, at Plaintiff's request, see Doc.
86, the undersigned extended the service deadline until
September 21, 2018. See Doc. 87.
August 17, 2018, Plaintiff filed a “Motion for Service
by U.S. Marshals Service [(USMS)].” Doc. 89, at 1. He
advised that certain Defendants, including Defendant Cain,
had not been served and, as relief, “request[ed] that
this Court ask the [USMS] to actively seek to service these
Defendants since Plaintiff was grant[ed] in forma pauperis,
and di[d] not have the means or resources to locate the
Defendants if they are no longer employed by GEO or Correct
Care Solution.” Id. at 1-2.
undersigned denied the motion, finding it lacked support:
[W]hile Plaintiff tells this Court that he “has in good
faith attempted to assist the [USMS) as best as he possibly
can from his confined position, ” Doc. 89, at 2, he
provided Correct Care Solution's address in Nashville,
Tennessee, as the address for service for Defendant Cain. See
Doc. 70, at 2. According to [Plaintiff's] own
allegations, however, Defendant Cain is a podiatrist and
outside provider whose “[p]lace of employment” is
the “Lawton Foot Clinic.” Doc. 20, at 6.
Doc. 94, at 2.
September 6, 2018, consistent with Fed.R.Civ.P. 72(a),
Plaintiff objected to this determination. See Doc.
September 7, 2018, Judge Heaton found “the order [wa]s
not clearly erroneous or contrary to law” and denied
Plaintiff's objection. Doc. 98.
Order to show cause.
September 21, 2018, the period allowed for service under
Fed.R.Civ.P. 4(m)-as extended-expired, and Defendant Cain had
not been served. Consistent with Rule 4(m), the undersigned
notified Plaintiff on March 1, 2019, that a recommendation to
dismiss this action without prejudice against Defendant Cain
would be made unless he showed good cause on or before
Friday, March 22, 2019, for his failure to serve this
Defendant. See Doc. 149.
Plaintiff is not entitled to a mandatory extension of time ...