United States District Court, S.D. Mississippi, Western Division
ORDER ADOPTING REPORT AND RECOMMENDATION
BRAMLETTE UNITED STATES DISTRICT JUDGE
the Court is the Suggestion of Death [Doc. 25] as to
Defendant Charence Dorsey; United States Magistrate Judge
Michael T. Parker's Report and Recommendation [Doc. 41]
to dismiss Defendant Dorsey from the action; and Magistrate
Judge Parker's Report and Recommendation [Doc. 43] to
dismiss Defendant Smith from the action.
careful consideration of the proposed findings and
recommendations, the Court determines that the Reports and
Recommendations [Doc. 41 and 43] are correct and should be
Report and Recommendation, Doc. 41
Report and Recommendation [Doc. 41], Magistrate Judge Parker
recommends that Defendant Dorsey be dismissed from the action
pursuant to Federal Rule of Civil Procedure 25(a)(1). Rule
If a party dies and the claim is not extinguished, the court
may order substitution of the proper party. A motion for
substitution may be made by any party or by the
decedent's successor or representative. If the motion is
not made within 90 days after service of a statement noting
the death, the action by or against the decedent must be
counsel in this matter filed the Suggestion of Death [Doc.
25] on September 10, 2018 and represented that based upon
information obtained from Wilkinson County Correctional
Facility and The Advocate newspaper, Defendant
Dorsey died on March 19, 2018. The plaintiff has not made a
motion for substitution, and 90 days have passed since
September 10, 2018.
plaintiff also indicated at the April 23, 2019 omnibus
hearing that he did not intend to proceed with his claims
against Defendant Dorsey. Doc. 41, p. 1. Defense counsel
represented again at the omnibus hearing that Defendant
Dorsey is deceased. Id. The plaintiff has not filed
an objection to Magistrate Judge Parker's Report and
Recommendation, which was entered on April 24, 2019.
Therefore, the Court will adopt Magistrate Judge Parker's
Report and Recommendation [Doc. 41] as its own findings and
Report and Recommendation, Doc. 43
13, 2018, the Court entered an Order [Doc. 10] directing that
a Notice of Lawsuit and Request to Waive Service of a Summons
be issued for the defendants. Counsel for Management Training
Corporation ("MTC") filed a sealed Response [Doc.
15], identifying defendant James Smith ("Smith") as
a former employee and providing his last known address. On
July 30, 2018, a Notice and Request for Waiver of Service
[Doc. 18] was issued to Smith at the address provided in the
sealed Response [Doc. 15] . Smith did not waive service.
August 31, 2018, an Order [Doc. 22] was entered directing the
United States Marshal to serve summons on Smith at the
address provided in the sealed Response [Doc. 15] . The
Marshal returned the summons as unexecuted with the notation,
"house is vacant." See Doc. 26. Without a
correct address, the Court is unable to serve process on
Smith. Doc. 43, p. 1.
September 26, 2018, the Court entered an Order [Doc. 30],
directing the plaintiff to provide an address for Smith by
October 17, 2018. The plaintiff did not provide an address.
The Court held an omnibus hearing on April 23, 2019. Doc. 43,
p. 1. Smith did not appear, and the plaintiff did not provide
an address for Smith at the hearing. Id.
rules govern procedure for service of process in cases filed
by plaintiffs proceeding Jn forma pauperis.
Lindsey v. U.S. R.R. Retirement Bd., 101 F.3d 444,
446 (5th Cir. 1996) . 28 U.S.C. § 1915(d) states that
"Mt]he officers of the court shall issue and serve all
process, and perform all duties in [Jn forma
pauperis] cases." Id. See Fed.R.Civ.P.
4(c) (3) ("At the plaintiff's request, the court may
order that service be made by a United States marshal or
deputy marshal or by a person specially appointed by the
court. The court must so order if the plaintiff is authorized
to proceed in forma pauperis under 28 U.S.C. § 1915
.") . Once the Jn forma pauperis plaintiff has
taken reasonable steps to identify the defendants, "the
court is obligated to issue plaintiff's process to a
United States Marshal who must in turn effectuate service
upon the defendants." Lindsey, 101 F.3d at 446
(emphasis and internal citation omitted).
well-settled in the Fifth Circuit that an incarcerated
plaintiff proceeding Jn forma pauperis "is
entitled to rely upon the United States Marshals for
sufficient service and should not be penalized for failure of
a Deputy Marshal to properly effect service of process."
Verrette v. Majors, 2008 WL 4793197, at *2 (W.D. La
Oct. 31, 2008) (citing Rochon v. Dawson, 828 F.2d
1107, 1110 (5th Cir. 1987)). If, however, "the failure
to properly serve a defendant is due to any fault on the
plaintiff, he is not entitled to rely on the U.S.
Marshals." Verrette, 2008 WL 4793197, at ...