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Carrier v. Atwood

United States District Court, S.D. Mississippi, Northern Division

December 29, 2014

SANDRA ATWOOD, ET AL., Defendants.


LINDA R. ANDERSON, Magistrate Judge.

Robert Carrier [hereinafter "Plaintiff"] filed a Complaint pursuant to 42 U.S.C. Section 1983 on July 2, 2013, naming as Defendants Judge Mike Smith, "USA, " Officer Atwood, Warden Grimes, Officer Mr. Tomas, Officer Ms. Tomas, and John Doe Warden of Parchman. Plaintiff is a convicted felon in the custody of the Mississippi Department of Corrections [MDOC] and housed at the East Mississippi Correctional Facility [EMCF]. By Memorandum Opinion and Order [9] filed December 2, 2013, the Court dismissed Judge Mike Smith, the United States, and MDOC from this case. Summonses were issued for Defendants Atwood, Mr. Tomas, Ms. Tomas, and Warden Grimes. All of the summonses were returned unexecuted on December 18, 2013, either because the Defendant was no longer employed at EMCF or because he or she could not be identified without first names.

Because Plaintiff is pro se, the undersigned was hesitant to recommend that his case be dismissed due to his failure to have process served without determining whether or not his case could go forward under 28 U.S.C. § 1915. Accordingly, the Court conducted an omnibus or Spears [1] hearing on November 4, 2014, in order to allow Plaintiff an opportunity to fully explain and augment the factual basis of his claims orally by giving sworn testimony regarding what he alleged in the written Complaint. After this hearing, and considering Plaintiff's sworn testimony, the written pleadings, as well as the applicable law, the undersigned recommends that Plaintiff's Complaint be dismissed for the reasons set forth herein below.


Plaintiff has not given the Court the full names of Defendants, or their current addresses, even though the Complaint was filed well over a year ago. It is the opinion of the undersigned that this case should be dismissed sua sponte for Plaintiff's failure to prosecute his case by not having caused process to be served within 120 days after the summonses were returned unexecuted.

FED. R. CIV. P.4(m) provides as follows:

(m) Time Limit for Service. If a defendant is not served within 120 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 effected within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period....

The time period for serving process originally expired at least by April 18, 2014, 120 days after process was returned unexecuted. The Court has not previously dismissed the case because prisoner plaintiffs are given great latitude in effecting process due to their incarceration. However, Plaintiff has been given a great deal of time and has not provided the Court with current address or the full names of the defendants he has named. This Court has no jurisdiction over these persons and has been unable to determine any addresses for service for these named Defendants. They are no longer employed by EMCF and the undersigned has been informed that they now reside in other states.

This Court also has the authority to dismiss an action for failure of a Plaintiff to prosecute or to comply with any order of the Court both under FED. R. CIV. P. 41(b) and under its inherent authority. See McCullough v. Lynaugh, 835 F.2d 1126 (5th Cir. 1988) ; Link v. Wabash R.R. Co., 370 U.S. 626, 630-631 (1962). The Court must be able to clear its calendars of cases that remain dormant because of the inaction or dilatoriness of the parties seeking relief, so as to achieve the orderly and expeditious disposition of cases. Such a sanction is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the court. Link, supra, 370 U.S. at 630. The actions of Plaintiff also prejudice the rights of Defendants to promptly and fully defend the claims made against them.

The undersigned recommends that the Complaint be dismissed without prejudice due to Plaintiff's failure to complete service of process in accordance with FED. R. CIV. P. 4(m). Alternatively, the Complaint should be dismissed on its merits for the reasons set forth below.


Plaintiff was granted in forma pauperis [IFP] status by Order entered August 12, 2013 [7]. A district court may dismiss an IFP complaint as frivolous or for failure to state a claim under 28 U.S.C. § 1915 (e)(2)(B). A complaint is frivolous if it lacks an arguable basis either in law or in fact. Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). A pro se prisoner is entitled to develop his complaint factually before a proper frivolousness determination can be made. See Eason v. Thaler, 14 F.3d 8, 9-10 (5th Cir. 1994). The undersigned conducted a Spears hearing for this purpose and to "bring into focus the factual and legal bases of prisoners' claims." Id. at 9 (quoting Spears, 766 F.2d at 181). The undersigned gave Plaintiff the opportunity to explain and/or expand his claims at the hearing.

Plaintiff testified that he was illegally extradited from California to Mississippi and convicted of armed robbery. He filed a habeas petition under 28 U.S.C. § 2254 challenging his extradition and conviction in 3:13cv421-CWR-LRA. Accordingly, any testimony and complaints regarding the purported illegality of those proceedings is not before the Court in this civil case regarding his conditions of confinement. Plaintiff has been housed at Parchman and at the Washington County Regional Correctional Facility in Greenville, and he is now housed at EMCF. The conditions about which he complains are from EMCF.

Plaintiff testified that his primary complaint was that he was raped, but that it was a "spiritual rape" involving astral projection. According to Plaintiff, he could feel the rape, like he was being pinched, but he was not physically touched during the attack. He charges that they have grabbed his soul somewhere else, but they were controlling him during the rape. Plaintiff charges that Defendant Warden Grimes raped him in this manner, and then took his clothes so that no DNA could be ...

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