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Davis v. Geo Group Corrections, Inc.

United States District Court, W.D. Oklahoma

April 2, 2019

EZEKIEL DAVIS, Plaintiff,
v.
GEO GROUP CORRECTIONS, INC. AMBER MARTIN, V.P., et al., Defendants.

          REPORT AND RECOMMENDATION PLAINTIFF'S FAILURE TO SERVE DEFENDANT CAIN

          SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE

         I. History.

         On April 24, 2018, the undersigned ordered Ezekiel Davis (Plaintiff)[1] 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.[2] 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.

         On May 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.

         On August 7, 2018, at Plaintiff's request, see Doc. 86, the undersigned extended the service deadline until September 21, 2018. See Doc. 87.

         On 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.

         The 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.[3]

         On September 6, 2018, consistent with Fed.R.Civ.P. 72(a), Plaintiff objected to this determination. See Doc. 96.

         On September 7, 2018, Judge Heaton found “the order [wa]s not clearly erroneous or contrary to law” and denied Plaintiff's objection. Doc. 98.

         II. Order to show cause.

         On 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.

         III. Plaintiff is not entitled to a mandatory extension of time ...


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