United States District Court, N.D. West Virginia
AMENDED REPORT AND RECOMMENDATION
E. SEIBERT UNITED STATES MAGISTRATE JUDGE.
initiated this pro se civil action on November 6,
2016, by filing a complaint pursuant to Bivens v. Six
Unknown Named Agents of Federal Bureau of
Investigation. Plaintiff's complaint involves
allegations regarding his medical care at FCI Gilmore for
spinal stenosis. Because Plaintiff did not file a Motion for
Leave to Proceed in forma pauperis, or pay the $400
filing fee, the Clerk of Court sent him a Notice of Deficient
Pleading. ECF No. 3. On December 12, 2016, Plaintiff paid the
400 filing fee. ECF No. 5.
January 30, 2017, Magistrate Judge Michael Aloi conducted a
preliminary review of the complaint and determined that
summary dismissal was not appropriate. However, because
Plaintiff had paid the filing fee and was not proceeding
in forma pauperis, he was responsible for obtaining
service of process on his own, and accordingly, Plaintiff was
made aware of the requirements of Rule 4(m) of the Federal
Rules of Civil Procedure. Summonses were issued and sent to
Plaintiff for service. ECF No. 7.
February 27, 2017, Plaintiff returned the summonses as
executed and noted on each that he had personally served the
Defendants as well as the United States Attorney General and
Helen Altmeyer for the United States Attorney. ECF No. 9. On
April 3, 2017, Plaintiff filed a Motion for Extension of Time
to Serve Defendants in combination with a Motion for Marshal
to Execute Service on his behalf. ECF No. 10. He attached the
envelopes for Defendants Perdue, Savage, Gherke and Fikes,
which had been returned to him, marked RETURN TO
SENDER/REFUSED/UNABLE TO FORWARD. In support of his motion,
Plaintiff noted that as an inmate, he is not permitted to
have the home addresses of government employees or contract
employees of the BOP.
30, 2017, Tara Tighe, Assistant United States Attorney,
appeared specially and for the limited and exclusive purpose
of alerting the Court that Plaintiff had failed to timely and
properly serve this lawsuit, and without waiving any other
prospective affirmative defenses, filed a Motion to Dismiss
Pursuant to Federal Rule of Civil Procedure 12(b)(5) for
failure to serve E. Anderson, J. Fikes, C. Gherke, R. A.
Perdue, T. Savage and M. Weaver. As correctly noted by AUSA
Tighe, Plaintiff had failed to serve his lawsuit upon the
individual defendants or the United States in any manner
authorized by the Federal Rules of Civil Procedure or West
Virginia State law.
28 U.S.C. 1915(d) provides that “officers of the court
shall issue and serve all process…” that
provision is only applicable in cases where the Plaintiff is
proceeding in forma pauperis. Accordingly, before
ruling on the motion to dismiss, the court advised Plaintiff
that he was responsible for serving the summons himself
because he was not proceeding in forma pauperis. However, the
Court recognized that his incarceration rendered it
difficult, if not impossible, to serve the Defendants.
Therefore, the Court granted the Plaintiff's Motion for a
Court for Service by the United States Marshal. However, the
Court could not direct service by the Marshal on Fikes,
Gherke, Savage and Perdue, because they were no longer
employed at FCI Gilmore. Therefore, the Plaintiff was
provided an additional 30 days to provide an address for each
of these defendants. In addition, although Plaintiff did not
request the same, the Court provided for personal service by
the Marshal on Defendants Anderson and Weaver, but only after
plaintiff tendered to the U.S. Marshal's Service a
treasury check or money order in the amount of $589. Finally,
the Court granted Plaintiff's motion for an extension of
time and established December 19, 2017, as the date by which
service must be accomplished. Plaintiff was forewarned that
failure to accomplish proper service on any Defendant by that
date would result in a recommendation that the instant
complaint be dismissed without prejudice against said
Defendant. ECF No. 16.
October 2, 2017, Plaintiff provided a physical address for C.
Gherke and acknowledged that he had been unable to locate an
address for J.Fikes, T.Savage and R.A. Perdue. In addition,
Plaintiff asserted that he had requested that $589 be
deducted from his inmate account and forwarded to the United
States Marshals Service. ECF No. 20. Thereafter, a summons
was issued as to C. Gherke, and forwarded to the United
States Marshals service for execution [ECF No. 22], and
Plaintiff was notified that he must send an additional
payment of $74.20 for service by the Marshal on C. Gherke.
ECF No. 24. Plaintiff was again warned that failure to
accomplish proper service on any Defendant by December 19,
2017, would result in a recommendation that the instant
complaint be dismissed without prejudice against said
full payment was received by the Marshal Service and M.
Weaver and E. Anderson were served on November 21, 2017 [ECF
Nos. 27, 28], and C. Gherke was served on November 30,
2017.ECF No. 29. Accordingly, those Defendants were served
well in advance of the December 19, 2017, deadline
established by the Court.
provides as follows:
If a defendant is not served within 90 days after the
complaint is filed, the court - on motion or on its own after
notice to the plaintiff - must dismiss the action without
prejudice against that defendant or order that service be
made within a specified time.
Plaintiff responded promptly to the Motion to Dismiss and to
the subsequent Orders entered by the Court with respect to
providing addresses and payment for personal service by the
United States Marshal. The Court does not believe that the
three defendants that have been served have been prejudiced
by the delay in service, and service was accomplished within
the extended deadline established on August 31, 2017.
it is hereby RECOMMENDED that the Motion to
Dismiss [ECF No.12] be GRANTED in part and Denied in
part. More specifically, the undersigned recommends
that the Motion be GRANTED with respect to
Mr. J. Fikes, Dr. T. Savage and Warden R.A. Perdue, and the
Plaintiff's complaint be DISMISSED WITHOUT
PREJUDICE as to those Defendants. The undersigned
further recommends that the Motion be DENIED
with respect to Dr. E. Anderson, P.A. C. Gherke and Mr. M.
Weaver, for whom summonses were returned executed by the
United States Marshal Service prior to the December 19, 2017
deadline. The undersigned also recommends that
Plaintiff's Motion for Court to Take Judicial Notice [ECF
No. 26] be DENIED AS MOOT, because the
Marshal Service received the entire $663.20 required to
execute service on Dr. E. Anderson, P.A. C. Gherke and Mr. M.
Weaver. Finally, the undersigned recommends upon adoption of
this Report and Recommendation, the Clerk of Court be
DIRECTED to issue a summons for the United
States Attorney for the Northern District of West Virginia
and the Attorney General of the United States and serve a
copy of the summons and complaint upon those parties by
certified mail, return receipt requested.
14 days after being served with a copy of this Report and
Recommendation, any party may file with the Clerk of Court
written objections identifying those portions of the
recommendation to which objection is made and the basis for
such objections. A copy of any objections shall also be
submitted to the Honorable Irene M. Keeley, United States
District Judge. Failure to timely file objections to this
recommendation will result in waiver of the right to appeal
from a judgment of this court based upon such recommendation.
28 U.S.C. § 636 (b) ...