United States District Court, N.D. Florida, Pensacola Division
REPORT AND RECOMMENDATION
THAI CANNON UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on referral from the clerk that no
response has been received from Plaintiff to the order at ECF
Doc. 54. That order, entered July 23, 2019, directed that
Plaintiff had thirty (30) days from the date of that order
to: (1) submit an address at which defendant Dr. Molina can
be served; (2) file a notice with the Court voluntarily
dismissing his claim against Dr. Molina; or (3) show cause
why the claim against Dr. Molina should not be recommended
for dismissal for failure to effect timely service. To date,
no response from Plaintiff on this issue has been received,
and Plaintiff has not served Defendant Molina.
Rule Civil Procedure 4(m) provides, “If a defendant is
not served within 90 days after the complaint is filed, the
court-on motion or on its own after notice to the
plaintiff-must dismiss the action without prejudice against
that defendant or order that service be made within a
specified time.” Richardson v. Johnson, 598
F.3d 734, 738-40 (11th Cir. 2010). However, the rule also
provides that “if the plaintiff shows good cause for
the failure, the court must extend the time for service for
an appropriate period.” Fed.R.Civ.P. 4(m); Rance v.
Rocksolid Granit USA, Inc., 583 F.3d 1284 (11th Cir.
the initial complaint was filed on May 11, 2018, ECF Doc. 1,
and Plaintiff was granted leave to proceed in forma
pauperis on May 14, 2018. ECF Doc. 4. The operative
complaint, the third amended complaint, was filed March 11,
2019. ECF Doc. 20. For prisoners proceeding in forma
pauperis, “[t]he officers of the court shall issue
and serve all process.” 28 U.S.C. § 1915(d).
“[T]he failure of the United States Marshal to
effectuate service on behalf of an in forma pauperis
plaintiff through no fault of that plaintiff constitutes
‘good cause' for the plaintiff's failure to
effect timely service within the meaning of Rule 4(m).”
Rance, 583 F.3d at 1288. In the case where the
in forma pauperis plaintiff is a pro se
prisoner, the Eleventh Circuit held:
It is unreasonable to expect incarcerated and unrepresented
prisoner-litigants to provide the current addresses of
prison-guard defendants who no longer work at the prison.
Thus, . . . as long as the court-appointed agent can locate
the prison-guard defendant with reasonable effort,
prisoner-litigants who provide enough information to identify
the prison-guard defendant have established good cause for
Rule 4(m) purposes.
Richardson, 598 F.3d at 739-40; see also Fowler
v. Jones, 899 F.2d 1088, 1095-96 (11th Cir. 1990)
(holding that prisoner-litigant proceeding in forma
pauperis was not at fault for failure to effect timely
service when he acted reasonably by requesting service on the
appropriate defendant and attempting to remedy any service
defects he knew about).
Court and the USMS have exerted such reasonable efforts but
have not been able to locate and serve Dr. Molina. On March
19, 2019, the Court directed the USMS to serve defendant Dr.
Molina by mailing the required documents to the special
process server at Santa Rosa CI. ECF Doc. 21. On April 1,
2019, Plaintiff informed the Court that he had wrongly
indicated Santa Rosa CI as Defendants' place of
employment for service purposes. ECF Doc. 25. Instead, it
should have been Blackwater River CF. Id. Thus, on
April 8, 2019, the Court directed the USMS to serve
Defendants, including Dr. Molina, at Blackwater River CF. ECF
Doc. 28. On May 8, 2019, waivers of service were received for
the other three Defendants, ECF Docs. 34-36, but not
Defendant Dr. Molina. Instead, on May 21, 2019, a notice that
summons was returned unexecuted as to Molina was filed. ECF
Doc. 37. In the notice, the USMS informed the Court that the
Blackwater River CF personnel department had verified that
Defendant Dr. Molina no longer worked at that facility.
response, on May 24, 2019, the Court directed the clerk to
send the service materials to the Assistant General Counsel
for the Florida Department of Corrections for assistance with
service. ECF Doc. 38. The Department filed a response,
indicating that Dr. Molina was not an employee but was
contracted from a private company; thus, the Department did
not have further address information. ECF Doc. 40. This led
to an order on June 25, 2019, which sought assistance from
the GEO Group's General Counsel in serving Defendant Dr.
Molina. ECF Doc. 41.
16, 2019, the Court received notice from Defendant Dr.
Molina's former employer, Wellpath LLC, which indicated
that Defendant was its former employee and that, to the best
of its knowledge, Defendant Molina has retired from
employment and moved to Spain. ECF Doc. 52.
history demonstrates that the Court and the USMS have made
reasonable efforts to serve Defendant Dr. Molina.
Additionally, the Court has provided Plaintiff with two (2)
additional months to provide a service address for Dr.
Molina, and Plaintiff has failed to do so. More than six (6)
months has passed since Plaintiff filed his third amended
it is respectfully RECOMMENDED:
1. That Plaintiff's claims against Defendant Molina be
DISMISSED WITHOUT PREJUDICE for failure to serve the third
amended complaint in the time limits set by Federal Rule of
Civil Procedure 4(m).
2. That the clerk be directed to terminate Dr. Molina as a