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Darnell v. Jimenez

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

August 11, 2017

JERRY LEE DARNELL PLAINTIFF
v.
JAIME JIMENEZ, et al., DEFENDANTS

          ORDER DISMISSING PLAINTIFF'S CLAIMS WITHOUT PREJUDICE

          HALIL SULEYMAN OZERDEN, UNITED STATES DISTRICT JUDGE

         This matter is before the Court sua sponte for case management purposes pursuant to Federal Rule of Civil Procedure 4(m) and due to Plaintiff Jerry Lee Darnell's failure to comply with the Court's Orders to properly serve Defendants and file Proofs of Service. After due consideration of the record and relevant legal authority, the Court finds that Plaintiff's claims against all Defendants should be dismissed without prejudice.

         I. BACKGROUND

         Plaintiff Jerry Lee Darnell (“Plaintiff”) filed a pro se Complaint [1] on February 3, 2016, pursuant to 42 U.S.C. § 1983. On February 23, 2016, the Court denied [6] Plaintiff's application [2] to proceed in forma pauperis and required him to pay the $400.00 filing fee within 30 days. Plaintiff paid the filing fee to the Clerk of Court on March 17, 2016.

         On March 18, 2016, the Clerk sent Plaintiff a Memorandum [9] advising him that he “is responsible for service of process pursuant to Rule 4 of the Federal Rules of Civil Procedure.” Mem. [9] at 1. The Clerk supplied Plaintiff with detailed instructions for issuing a summons and explained that service in compliance with Federal Rule of Civil Procedure 4 was required. Id. The Clerk warned that if these steps were not taken, “this case may be dismissed as provided for in the Federal Rules of Civil Procedure.” Id. The Clerk enclosed a copy of Rule 4 with the Memorandum to Plaintiff. Id.

         On April 8, 2016, Plaintiff caused Summonses to be issued for Defendants Latasha Clay, Joseph Cooley, Unknown Green, Unknown Hardy, Jaime Jimenez, and Ronald Woodall. Plaintiff returned the Summonses as executed, but Plaintiff had signed each Proof of Service as the process server. See Proofs of Service [17], [18]. On May 26, 2016, Plaintiff moved [21] for a default judgment against Clay, Cooley, Green, Hardy, Jimenez, and Woodall. On October 17, 2016, the Court denied Plaintiff's Motion for Default Judgment [21] and set aside the Clerk's Entry of Default. Order [30] at 9. The Court directed Plaintiff to properly serve Clay, Cooley, Green, Hardy, Jimenez, and Woodall in the manner required by Rule 4 and to file the proper proofs of service with the Clerk of Court, all by November 18, 2016. Id. at 9-10. The Court warned Plaintiff that

should he fail to properly serve any of these Defendants and/or fail to file proper notice of said service by November 18, 2016, any unserved Defendant may be dismissed without prejudice without further notice to Plaintiff, unless Plaintiff is able to show good cause for such failure.

Id. at 10 (emphasis in original). The Court directed the Clerk to mail a copy of its Order along with summons forms to Plaintiff at his last known address. Id.

         On November 17, 2016, Plaintiff filed a Motion for Extension of Time to Serve Process [33]. The Magistrate Judge granted Plaintiff's Motion [33] in part and denied it in part, see Nov. 18, 2016, Text Order, and ordered that “Plaintiff's deadline to serve all defendants in compliance with Federal Rule of Civil Procedure 4 and file proof of such service is 12/9/2016. Plaintiff is reminded that it is his responsibility to prosecute the case, ” id.

         On December 12, 2016, Plaintiff filed what he characterized as “Proof of Service by certified mail for all Defendants . . . .” Proof of Service [36] at 1. Plaintiff attached United States Postal Service (“USPS”) production and tracking information from USPS.com indicating that four items had been mailed on November 15, 2016, via USPS certified mail, and were received in Leakesville, Mississippi, on November 16, 2016. Plaintiff also attached signed certified mail receipts which indicated that articles addressed to “Kim Green, ” “Ronald Woodall, MD, ” “Dr. Jaime Jimenez, ” “Joseph Cooley, ” and “Kera D. Hardy” were delivered, though not all were signed for by the addressee. Proofs [36-2] at 1, 3, 5-6, 8. One addressed to “Latasha Clay” was returned to sender. Id. at 9.

         On December 19, 2016, Plaintiff sent a letter to the Clerk of Court attaching alias Summonses which had been issued for each Defendant. Letter [37] at 1. Plaintiff stated that

[t]he Court has the certified postal slips. I could not mail anything from WCCRF certified mail. Tekeshia Jones will be sending the Proof of Service forms because she mailed the summons [sic] through the post-office certified mail for me.

Id. Proofs of Service [38] were filed on December 29, 2016. Each was signed by Tekeshia Jones, who averred that she had “sent summons by certified mail.” Proofs [38] at 1-5.

         On February 16, 2017, Plaintiff filed another Motion for Default Judgment [40] which the Court denied on June 19, 2017, on grounds that Plaintiff had not properly served Defendants in accordance with ...


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