United States District Court, M.D. Louisiana
June 2, 2015
ANTONIOUS L. JONES (#579275),
JEANIE E. LOUQUE
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
RICHARD L. BOURGEOIS, Jr., Magistrate Judge.
The pro se plaintiff, an inmate confined at the Louisiana State Penitentiary ("LSP"), Angola, Louisiana, filed this proceeding pursuant to 42 U.S.C. § 1983 against Jeanie E. Louque, a court reporter previously employed by the Nineteenth Judicial District Court for the Parish of East Baton, State of Louisiana, complaining that the defendant violated the plaintiff's constitutional rights by failing to transcribe the testimony given in connection with the plaintiff's criminal convictions and sentences. The plaintiff contends that, as a result, his convictions and sentences were affirmed based upon an incomplete record.
Inasmuch as the plaintiff is proceeding pro se in this case, the Court, pursuant to Order dated October 23, 2014 (R. Doc. 4), directed the United States Marshal's Office to serve the defendant named herein, wherever found. In accordance with normal procedure, the Marshal's Office forwarded correspondence to the plaintiff directing him to fill out and return a copy of a United States Marshal's Form USM-285, providing the name and address of the defendant to be served. The plaintiff returned the completed form to the Marshal's Office, indicating thereon that the Marshal should serve defendant Louque at the Nineteenth Judicial District Court. See R. Doc. 6. The record reflects that the United States Marshal's Office thereafter attempted to serve the defendant by contacting the state court on or about January 5, 2015, and the hand-written notation on the Marshal's Return indicates that the Deputy Marshal was"unable to locate the individual" at the address provided and that the Deputy Marshal was informed by personnel at the state court that defendant Louque was "no longer working at [the] listed location." See id. The referenced Marshal's Return was filed into the record on January 8, 2015, and a copy thereof was sent to the plaintiff at his record address. Notwithstanding, the record reflects that no further action has since been taken by the plaintiff to obtain service upon defendant Louque, and no appearance has been made on the defendant's behalf, either by motion or by answer filed in this proceeding.
Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, "[i]f a defendant is not served within 120 days after the complaint is filed, the court... must dismiss the action without prejudice against that defendant or order that service be made within a specified time." This Rule further provides that "if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period." A determination regarding whether a plaintiff has made a sufficient showing of good cause "is necessarily fact-sensitive" and depends upon the particular circumstances of the case. Lindsey v. United States Railroad Retirement Board, 101 F.3d 444, 446 (5th Cir. 1996). At a minimum, in order to show good cause, "the plaintiff must demonstrate at least as much as would be required to show excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance of the rules usually do not suffice." Id., quoting Peters v. United States, 9 F.3d 344, 345 (5th Cir. 1993). A district court retains the discretion to extend the time for service even in the absence of good cause. See Thompson v. Brown, 91 F.3d 20, 21 (5th Cir. 1996).
In the instant case, as noted above, the Court appointed the United States Marshal's Office to effect service on the defendant in this case, as required by Rule 4(c)(3) of the Federal Rules of Civil Procedure. In such instance, an incarcerated pro se plaintiff is "entitled to rely upon service by the U.S. Marshals and should not be penalized for failure of the Marshal's Service to properly effect service of process, where such failure is through no fault of the litigant." Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987). However, once a plaintiff has been placed on notice of deficiencies in service, he "may not remain silent and do nothing to effectuate such service." Id. at 1110. See also Ellibee v. Leonard, 226 Fed.Appx. 351, 358 (5th Cir. 2007). "At a minimum, a plaintiff should request service upon the appropriate defendant and attempt to remedy any apparent service defects of which a plaintiff has knowledge." Rochon v. Dawson, supra, 828 F.2d at 1110. If the failure to timely effect service is due to the "dilatoriness or fault" of the plaintiff, he will ordinarily be unable to show good cause for such failure. See id. See also Lindsey v. United States Railroad Retirement Board, supra, 101 F.3d at 447.
In the instant case, after the appointment of the United States Marshal's Office for service, the plaintiff provided the Marshal's Office with the address of the Nineteenth Judicial Court, where the defendant was believed to be employed, as the place where the defendant could be served. Had the Marshal been able to deliver the summons and Complaint to the defendant personally at that location, service would have been proper at that time. However, inasmuch as Defendant Louque was apparently no longer employed at the address provided, and inasmuch as court personnel apparently were not authorized by appointment or by law to accept service on the defendant's behalf, service was refused for the defendant on January 5, 2015. See R. Doc. 6. By receipt of the service copy of the Marshal's Return, the plaintiff was placed on notice that service had not been effected as to the defendant. Notwithstanding, the plaintiff has taken no action since that time, a period of approximately 5 months, to obtain service upon defendant Louque, to obtain additional information relative to the defendant's location, or to obtain an extension of time within which to effect service.
Based on the foregoing chronological recitation, the Court concludes that service upon the defendant has not been effected in a timely manner in accordance with Fed.R.Civ.P. 4(m) and that there is nothing in the record to suggest that the plaintiff will be able to show good cause for the untimely service in this case. Accordingly, it is appropriate that this proceeding be dismissed, without prejudice, as a result of the plaintiff's failure to effect timely service upon the defendant.
It is recommended that the above-captioned proceeding be dismissed, without prejudice, pursuant to Fed.R.Civ.P. 4(m).