United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
F. BIVINS UNITED STATES MAGISTRATE JUDGE
action was referred to the undersigned pursuant to 28 U.S.C.
§ 636(b)(1)(B) and Local Rule 72(a)(2)(R), and is now
before the Court due to the failure to effect service of
process on Defendant Joshua Day. (Docs. 34, 35). Upon careful
consideration, and for the reasons stated herein, it is
recommended that Plaintiff's claims against Defendant
Joshua Day be dismissed without prejudice for failure to
effect timely service.
Kendarrius Daniels filed the instant action alleging that on
October 30, 2016, while being housed on death row at Holman
Correctional Facility, he was stabbed in his outstretched arm
several times by an inmate who was walking down the hall.
(Doc. 1 at 4). Daniels alleges that he screamed for officers
to help him, but no one came to his aid, so he started a fire
to gain the attention of correctional officers. (Id.
at 4-5). According to Daniels, Defendants Lt. Bullock,
“Sergeant Dayum, ” and T. Roberts came to his
cell, contained the fire, and took him to the medical unit to
be examined and treated. (Id.). Daniels filed the
instant action alleging that Defendants were deliberately
indifferent and failed to protect him from said attack.
requested and was granted permission to proceed without
prepayment of fees. (Docs. 2, 3). Accordingly, pursuant to
the Court's Standing Order dated February 1, 1994, the
Court directed the Clerk to serve Defendants with waiver of
service of process documents. (Doc. 8). The waiver of service
of process documents were sent to Defendants at Holman
Correctional Facility, 3700 Holman, Atmore, Alabama
36503-3700, on June 30, 2017. (Docs. 8, 9). On August 23,
2017, the Alabama Attorney General's office notified the
Court that it was unable to locate an employee at the Holman
facility named “Sergeant Dayum”, which is the
name Daniels listed in his complaint. (Doc. 18). On September
5, 2017, Plaintiff filed a “Motion to Perfect
Service”, wherein he identified “Sergeant
Dayum” as “Sergeant Day.” (Doc. 21).
Accordingly, the Court directed Defendants to provide the
Court with the correct name of “Sergeant Dayum”
and to provide the Court, under seal, with the
individual's current address. (Doc. 22). On September 13,
2017, Defendants identified “Sergeant Dayum” as
Defendant Joshua Day and provided the Court with his address.
(Doc. 24). Subsequent thereto, the Court, on November 7,
2017, directed the clerk to send the waiver of service of
process documents to Defendant Day, at the address provided
by Defendants. (Docs. 25, 26). The Request for Waiver of
Service of Summons informed Defendant Day that he had thirty
(30) days, or until December 7, 2017, in which to return a
signed copy of the waiver. (Doc. 26). On December 6, 2017,
Defendant Day's Waiver of Service was returned,
unexecuted, to this Court. (Doc. 28).
Court next directed the United States Marshal's Office to
effect service of process on the person of Defendant Day at
the address provided by Defendants. (Doc. 32). Because
Defendant Day would be responsible for the expenses
associated with personal service by the Marshal absent a
showing of good cause, the Court also directed the Clerk of
Court to send Day a copy of the service documents in order to
afford him an opportunity to take the necessary steps to
avoid the costs associated with service by the Marshal.
(Id.). Further, on June 6, 2018, the United States
Marshal returned Defendant Day's service documents
unexecuted. (Doc. 34). The returned documents included a
notation that the agents had unsuccessfully attempted to
effect service on Defendant Day three times at the address
provided by the Alabama Attorney General's office.
(Id.). On June 25, 2018, Defendant Day's copy of
the service documents, which were sent to him pursuant to the
Court's order dated May 21, 2018, were returned to the
Court by the United States Postal Service, affixed with a
stamp denoting that the mail was unclaimed. (Doc. 35).
assist inmate plaintiffs in effecting service under Rule 4 of
the Federal Rules of Civil Procedure because they are
confined and typically indigent. See, e.g.,
Fowler v. Jones, 899 F.2d 1088, 1095 (11th Cir.
1990) (“In forma pauperis litigants should be
entitled to rely on the court officers and United States
Marshals to effect proper service where such failure is not
due to fault on the litigant's part.”). However,
the Court ordinarily does not have an obligation to assist an
inmate in effecting service beyond “directing the
Marshal to serve process on those parties (and their
addresses) clearly identified by the inmate-plaintiff.”
Simmons v. Prison Health Servs., Inc., 2009 WL
2914103 at *1, 2009 U.S. Dist. LEXIS 82666 at *5 (S.D. Ga.
Sept. 10, 2009). Where an incarcerated plaintiff attempts to
obtain a defendant's address for service but is unable to
do so, courts can provide additional assistance. See
Hampton v. Peeples, 2016 WL 845332 at *2, 2016 U.S.
Dist. LEXIS 26578 at *5 (S.D. Ga. Mar. 2, 2016) (ordering the
United States Marshal to make reasonable efforts to locate a
defendant and personally serve him).
4(m) of the Federal Rules of Civil Procedure authorizes a
court to dismiss an action, after notice to the plaintiff,
when “a defendant is not served within 90 days after
the complaint.” Fed.R.Civ.P. 4(m). However, “if
the plaintiff shows good cause for the failure [to serve],
the court must extend the time for service for an appropriate
period.” Id. Generally, “the failure of
the United States Marshal to effectuate service on behalf of
an in forma pauperis plaintiff through no fault of
that plaintiff constitutes ‘good cause' for the
plaintiff's failure to effect timely service within the
meaning of Rule 4(m).” Rance v. Rocksolid Granit
USA, Inc., 583 F.3d 1284, 1288 (11th Cir. 2009). The
Eleventh Circuit has held that “as long as the
court-appointed agent can locate the prison-guard defendant
with reasonable effort, prisoner-litigants who provide enough
information to identify the prison-guard defendant have
established good cause for Rule 4(m) purposes.”
Richardson v. Johnson, 598 F.3d 734, 740 (11th Cir.
the record establishes that the Court has taken steps to
obtain Defendant Day's last known address and to have him
served, but to no avail. To date, the Court has made the
following attempts to effect service of process on Defendant
Day: (1) issuing waiver of service of process documents to
all defendants at Holman Correctional facility on June 29,
2017; (2) directing the Alabama Attorney General's office
to provide the current address for Defendant Day; (3)
directing the Clerk to send waiver of service of process
documents to Defendant Day at the address provided by the
Alabama Attorney General's office; (4) directing the
United States Marshal to effect service on Defendant Day; and
(5) directing the Clerk to mail the service documents to
Defendant Day, at the address provided by the Alabama
Attorney General's office.
the Court's exhaustion of reasonable efforts to serve
Defendant Day with the summons and complaint between June
2017 and May 2018, service on Defendant Day remains
unexecuted. Accordingly, it is appropriate for the Court to
recommend the dismissal of Plaintiff's claims against
Defendant Day so that the case can proceed against the
remaining Defendants. See Davis v. Young, 2013 WL
4779220 at *4, 2013 U.S. Dist. LEXIS 126571 (M.D. Ga. Sept.
5, 2013) (dismissing a prisoner-plaintiff's claims
against a former correctional officer defendant because the
court, despite reasonable efforts, was unable to locate and
effect service of process on the defendant); Williams v.
Hodges, 2010 WL 518776 at *5, 2010 U.S. Dist. LEXIS 7846
at *15-16 (S.D. Tex. Jan. 31, 2010) (dismissing a
prisoner-plaintiff's claims against a correctional
officer because two attempts at service of process on a
defendant were unsuccessful); Hampton, 2016 WL
845332 at *2, 2016 U.S. Dist. LEXIS 26578 at *6 (warning
plaintiff that if attempts by the Marshal to serve defendant
proved unsuccessful, the court would dismiss the claims
against the defendant).
aforementioned reasons, it is RECOMMENDED that
Plaintiff's claims against Defendant Joshua Day be
DISMISSED without ...