United States District Court, S.D. Mississippi, Southern Division
REPORT AND RECOMMENDATION
H. WALKER UNITED STATES MAGISTRATE JUDGE
the Court is  the motion to dismiss filed by Defendant
Wayne Grayson, M.D., on August 8, 2018 in this pro
se prisoner civil rights lawsuit. Plaintiff has filed no
response to the motion.
and Procedural History
Heath VanSlyke is a Mississippi Department of Corrections
(MDOC) inmate presently housed at Wilkinson County
Correctional Facility (WCCF), where he is serving four
sentences totaling twenty years. His tentative release date
is August 23, 2037. VanSlyke filed this lawsuit May 30, 2017
against five defendants, complaining of conditions at Pearl
River County Jail (PRCJ) during three of his stays at the
facility while awaiting trial. According to his screening
hearing testimony, VanSlyke was in PRCJ from March 30-April
12, 2016, August 13-October 12, 2016, and from April
13-November 9, 2017; he was in MDOC custody during the
intervening periods. [63, pp. 7-9] VanSlyke is proceeding
pro se and in forma pauperis.
Grayson, a physician who attended inmates at PRCJ at that
time, was one of fifteen defendants added to the case
pursuant to VanSlyke's response  to a Court order
requiring additional information.  As to Dr. Grayson,
Plaintiff specifically alleged that:
Nurse Robin (West) and Dr. Grayson were informed over 30 days
that the red sauce and meat on the [food] trays were
upsetting my stomach and I asked that the red sauce be taken
off my tray over 30 days and it was not. I developed hemroids
(sic) and had diareah (sic) over 30 days
until the red sauce was finally taken off.
[13, p. 3] A notice of lawsuit and request for waiver of
service of process were sent to Dr. Grayson at 200 South Main
Street, Poplarville, Mississippi 39740, which is the address
of PRCJ.  The request for waiver of service was not
returned, and on December 22, 2017, the Court ordered
issuance of summons to be served by the United States Marshal
Service [USMS] on Dr. Grayson at the same address.  The
USMS returned the process executed, indicating on the return
that the summons was served at the Pearl River County Jail,
and elaborating on the service as follows:
I left the summons at the individual's residence or usual
place of abode with (name) Robin West Medical
Manager, a person of suitable age and discretion who resides
there, on (date) 1/22/18, and mailed a copy to the
individual's last known address; ...
[34, pp. 14-15] The return bore handwritten remarks that,
“ Dr. Grayson is Wayne Grayson, left with Robin West to
give to Dr. Grayson when he returns back to the jail.”
[34, p. 15] Dr. Grayson asserts VanSlyke has failed to
properly serve process on him, that VanSlyke failed to give
the required statutory notice prior to filing a medical
negligence claim,  and that his factual allegations are
insufficient to state a claim upon which relief can be
undersigned finds Dr. Grayson has not been properly served
with process. The summons was issued for service on Dr.
Grayson at the Pearl River County Jail, and, contrary to the
certification that the summons was left at Dr. Grayson's
“residence or usual place of abode, ” the return
shows it was left at the Pearl River County Jail with Robin
West. However, the undersigned further finds the failure to
properly serve Dr. Grayson is not chargeable to the pro
se prisoner Plaintiff who had no control over the
service by the USMS. Since VanSlyke was granted leave to
proceed in forma pauperis, he is entitled to service
of process by the U.S. Marshal under Fed.R.Civ.P. 4(c)(3).
“[A] plaintiff proceeding in forma pauperis 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...” Rochon v.
Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987). Absent a
voluntary appearance by Dr. Grayson in the case, service of
the summons and complaint are required to vest the Court with
personal jurisdiction over him. Therefore, the undersigned is
of the opinion that the process issue must be resolved prior
to addressing the additional arguments contained in the
present motion. To that end, the undersigned is this date
entering an order allowing Plaintiff VanSlyke one final
opportunity to provide an address where Dr.
Grayson may be served with process of this Court,
failing which the undersigned will recommend dismissal of the
case as to Dr. Grayson.
on the foregoing, the undersigned recommends that Dr. Wayne
Grayson's motion to dismiss be denied at this time.
OF RIGHT ...