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Johnson v. Medstat EMS

United States District Court, N.D. Mississippi, Greenville Division

July 21, 2017

HART EVERETT JOHNSON PLAINTIFF
v.
MEDSTAT EMS; DAVID GRAYSON; DAVE ELDRIDGE; LISA MCDANIEL; ERIC SPRAYBERRY; COLBY SPRAYBERRY; RHONDA WADE; MARY FOLEY KOTEV; and TYRONE DILLIARD DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          DEBRA M. BROWN, UNITED STATES DISTRICT JUDGE

         This employment discrimination action is before the Court for consideration of Hart Everett Johnson's “Opposition to Defendants Motion to Dismiss, ” which, based on its substance, the Court construes as a motion to appoint counsel, a motion for reconsideration, and a response to this Court's order to show cause. Doc. #23.

         I

         Procedural History

         On April 21, 2016, Hart Everett Johnson, acting pro se, filed a “Complaint for Employment Discrimination” against: (1) MedStat EMS (“MedStat”); (2) David Grayson; (3) Dave Eldridge; (4) Lisa McDaniel; (5) Eric Sprayberry; (6) Colby Sprayberry; (7) Rhonda Wade; (8) Mary Foley Kotev; and (9) Tyrone Dilliard. Doc. #1. The complaint asserts claims under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, and the Family Medical Leave Act. Id. at 5.

         On May 2, 2016, Johnson filed proofs of service asserting personal service on MedStat, Doc. #4, and Dilliard, Doc. #5. The MedStat proof of service lists Johnson as the server and states that the summons was served on MedStat on April 25, 2016, “on Office Manager Renae Woods, witnessed by Winona Police Chief Johnny Hargrove.” Doc. #4. The Dilliard proof of service also lists Johnson as the server and states that Dilliard was personally served with a summons on April 22, 2016, and that such service was “witnessed by Greenville Police Officer Percy Pennington.” Doc. #5.

         Three days later, on May 5, 2016, Johnson filed a motion asking the Court to order MedStat to accept service “of all defendants named in the complaint who are still in their employment ….” Doc. #6. The following day, Johnson filed a proof of service stating that he personally served Colby Sprayberry on May 3, 2016, and that such service was “witnessed by coworker - (MedStat Employee) Ricky Hoskins.” Doc. #7.

         Dilliard, MedStat, and Colby Sprayberry filed motions to dismiss for insufficient process and insufficient service of process on May 12, May 16, and May 23, 2016, respectively. Doc. #8; Doc. #10; Doc. #12. These motions were mailed to Johnson at his address listed on the complaint.

         On June 6, 2016, United States Magistrate Judge Jane M. Virden denied Johnson's motion to compel acceptance of service. Doc. #14. Two weeks later, on June 20, 2016, Johnson filed a motion asking the Court “to remove all of the defendants named in the … complaint with the exception of David Grayson and the company MedStat ….” Doc. #16. On November 10, 2016, Johnson, without receiving leave of the Court, filed an amended complaint against MedStat and Grayson. Doc. #17. On November 29, 2016, MedStat filed a motion to strike the amended complaint. Doc. #18.

         On December 16, 2016, this Court entered an order which: (1) granted Johnson's motion to “remove, ” which was in substance a motion to voluntarily dismiss all defendants except Grayson and MedStat; (2) granted MedStat's motion to strike the amended complaint; (3) denied as moot the motions to dismiss of Dilliard and Colby Sprayberry; (4) granted MedStat's motion to dismiss to the extent it sought dismissal for insufficient service of process; and (5) ordered Johnson to show cause within fourteen days why “the action against Grayson should not be dismissed under Rule 4(m) of the Federal Rules of Civil Procedure for failure to timely serve Grayson. Doc. #21 at 8-9.

         On January 9, 2017, Johnson filed an “Opposition to Defendants Motion to Dismiss, ” which states:

PLANTIFF REQUEST THAT MOTION TO BE DISMISSED BY THE DEFENDANT BE DENIED BASED ON THE DILLIGENT EFFORTS MADE BY THE PLANTIFF IN ATTEMPTING TO MAKE SERVICE OF PROCESS. PLANTIFF DID SERVE THE DEFENDANTS AGENT UPON LEARNING THE PROPER ADDRESS AND LOCATION. PLANTIFF ASK THAT THE COURT FIND EXCUSABLE NEGLECT OF THE PLANTIFF IN MATTERS UNDER RULE 4 (m). PLANTIFF IS PRO SE LITIGANT AND AS SUCH IS NOT KNOWING OF ALL THE RULES OF THE COURT AS MUCH AS HE MAY TRY. PLANTIFF ASKS THE COURT TO DENY THE MOTION FOR DISMISSAL AND CONSIDER A COURT APPOINTED REPRESENATIVE FOR PLANTIFF IN THIS CAUSE. PLANTIFF HAS SEARCHED DILLIGENTLY FOR AN ATTORNEY TO REPRESENT HIM IN THIS CASE BUT HAVE BEEN UNABLE TO FIND ONE TO TAKE THE CASE ON ITS MERITS AND IS FINANCIALLY UNABLE TO HIRE ONE BECAUSE OF NO VIABLE INCOME FOR THE LAST YEAR DUE TO MEDICAL AND HEALTH PROBLEMS.

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