United States District Court, S.D. Mississippi, Western Division
ORDER ADOPTING IN PART REPORT AND RECOMMENDATION AND REMANDING CASE
DAVID BRAMLETTE, District Judge.
This cause is before the Court on Magistrate Judge Michael T. Parker's Report and Recommendation of April 24, 2015 [docket entry no. 16]. Therein, Judge Parker recommends that the case be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 4(m) and 41(b). Also pending is Plaintiff's, Jorge Luis Pacheco, Motion for Preliminary Injunction [docket entry no. 12]. Having reviewed the Report and Recommendation, the plaintiff's objections thereto, and applicable statutory and case law, the Court finds as follows:
I. Factual and Procedural Background
Plaintiff Jorge Luis Pacheco instituted this civil rights action on October 14, 2014. In his complaint, Pacheco argues claims based on (1) failure to hire qualified medical providers at Adams County Correctional Facility and (2) failure to provide adequate medical care. He is seeking $20, 000, 000 in damages and appropriate treatment for a medical condition.
Because Pacheco is not proceeding in forma pauperis but is proceeding pro se, the Clerk of Court provided him with summons forms and instructions for the issuance of service of process under Federal Rule of Civil Procedure 4, along with a copy of Rule 4. On December 15, 2014, the Clerk issued summons prepared by Pacheco for all named defendants. Pacheco, however, has never filed a proof of service for any defendant. The Court has already extended the deadline and even ordered Pacheco to file proof of service, but he has failed to do so.
II. Magistrate Judge's Findings
Judge Parker found that the failure to provide service of process was fatal to Pacheco's case under Rules 4(m) and 41(b). Rule 4(m) provides that a court must dismiss without prejudice an action against a defendant who has not been served within 120 days after the complaint was filed. Fed.R.Civ.P. 4(m). Rule 41(b) provides for dismissal where a plaintiff has failed to prosecute his case or comply with the Rules or a court order. Fed.R.Civ.P. 41(b). A court may sua sponte dismiss an action under Rule 41(b). See Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962); Larson v. Scott, 157 F.3d 1030, 1031 (5th Cir. 1988).
III. Plaintiff's Objections
Pacheco timely filed his objections to the Report and Recommendation. In his objections, Pacheco urges that the summonses were placed in the prison mailbox for delivery on January 2, 2015. He also attaches pages from his prison mail log. See Objection to Report & Recommendation, ECF No. 17.
"[P]arties filing objections must specifically identify those findings objected to. Frivolous, conclusive or general objections need not be considered by the district court." Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987) (quoting Nettles v. Wainwright, 667 F.2d 404, 410 n.8 (5th Cir. 1982) (en banc)). Meritorious objections mandate a de novo review of the Report and Recommendations. 28 U.S.C. § 636(b)(1) (2009). Merely reurging the allegations in the petition or attacking the underlying conviction is insufficient to receive de novo review, however. Those portions of the report not objected to are reviewed only for plain error. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1).
Pacheco's objection mandates de novo review. Even upon this less deferential standard of review, however, the Court finds that Pacheco has not met his obligation under the Rules. Rule 4 requires that proof of service be provided to the Court. Fed.R.Civ.P. 4(l)(1). The mere contention that the summonses were mailed is insufficient proof of service. Further, Pacheco has docketed nothing to show that he has effectuated service on any of the named defendants.
IV. An Answer Was Filed
Despite Pacheco's failure to provide proof of service of process, one named defendant, Corrections Corporation of America ("CCA"), filed an answer to Pacheco's complaint after Judge Parker entered his Report and Recommendation. Because the "[f]ailure to prove service does not affect the validity of service, " the Court finds that Pacheco has properly served CCA and the claims against it should not be dismissed. See Fed.R.Civ.P. 4(l)(3); see also City of Clarksdale v. BellSouth Telecomms., Inc., 428 F.3d 206, 214 n.15 (5th Cir. 2005) ("Filing an answer to the complaint without objecting to service of process... waive[s] a defendant's right to object to service of process."). In its answer, CCA asserts the defense of insufficient service of process. See Answer 1, ECF No. 18. But in its response to ...