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Ezzard v. Ajibade

United States District Court, S.D. Georgia, Dublin Division

April 24, 2015

STEVE HUGH EZZARD, Plaintiff,
v.
DR. AJIBADE and BRAD HOOKS, Warden, Defendants.

ORDER

DUDLEY H. BOWEN, District Judge.

Before the Court is pro se Plaintiff's "Objection to Magistrate Order to Deny Document #28 Motion to Reconsider For Just Cause" (doc. no. 40), and letter to the presiding judge in this case (doc. no. 43), which the Court construes as a motion regarding service. The motions are GRANTED as set forth below.

I. BACKGROUND

On July 23, 2014, Plaintiff, an inmate at Johnson State Prison in Wrightsville, Georgia, filed a complaint in the Northern District of Georgia pursuant to 42 U.S.C. § 1983 seeking the following relief:

The Veteran's Administration has acknowledged that they'd fix my leg, provided [sic] therapy and future treatment. I ask that this Court grant the VA Hospital authorization to do the surgery and make the State of Georgia Department of Corrections pay me $35, 000, 000.00 million dollars for damages, denial of medical treatment, pain and suffering, emotional distress, and punitive damages.

(Compl. ¶ 5.) On October 8, 2014, Plaintiff paid the $350.00 filing fee and the $50.00 administrative fee required for civil actions ("filing fees"). (See doc. no. 21.) That court dismissed Plaintiff's claims against certain Defendants and transferred his remaining claims to this Court. (Doc. no. 15.) Dr. Ajibade and Warden Brad Hooks, officials at Johnson State Prison, are the only remaining Defendants in the case.

Upon transfer, the Court explained to Plaintiff that pursuant to Federal Rule of Civil Procedure 4, he is responsible for serving Defendants because he paid the filing fees. (Doc. no. 21.) The Court then set the 120-day time limit for service under Rule 4 to run from the date of the first Order entered in this Court - December 9, 2014 - rather than the date Plaintiff originally filed his complaint in the Northern District of Georgia. Thus, Plaintiff was required to serve Defendants on or before April 9, 2015.

On December 12, 2014, Plaintiff sought to amend his complaint by adding claims against two former Defendants. (Doc. no. 24.) On January 6, 2015, the United States Magistrate Judge denied the motion because inter alia Plaintiff had not attached an appropriate certificate of service to his motion. (Doc. no. 28.)

On January 20, 2015, Plaintiff filed a petition to proceed in forma pauperis explaining that his family paid the initial filing fees, asserting that he is unable to pay any additional fees relating to this litigation, and asking that his case not be dismissed for failure to comply with Rule 4 service requirements. (Doc. no. 30.) On February 2, 2015, the Magistrate Judge denied the in forma pauperis petition as moot because Plaintiff had already paid the initial filing fees and did not specify which expenses he was unable to afford. (Doc. no. 34.)

On February 9, 2015, Plaintiff filed an objection to those rulings regarding service. (Doc. no. 40.) Plaintiff informs the Court that he twice attempted to provide waiver of service forms to Defendant Dr. Ajibade and Defendant Warden Brad Hooks at Johnson State Prison, once by mail and once by personal delivery. Plaintiff contends that Defendants have not waived service, underscores his inability to pay for expenses related to service or litigation, and asks the Court not to dismiss the case.

On March 11, 2015, Plaintiff submitted a letter to the presiding judge seeking the following relief:

I do not want my case to be dismissed for want of prosecution due to the fact that the Defendants will not waive service by signing [waiver of service] forms in there [sic] possession. So to alleviate a miscarriage of justice and in the interest of justice, I'm asking this Court to have the U.S. Marshall's [sic] personally serve the Defendants.

(Doc. no. 43.)

II. DISCUSSION

A. Service Requirements and Waiver of Service

Federal Rule of Civil Procedure 4 requires service of the summons and complaint by following the law of the forum state; delivering a copy of the summons and complaint to the defendant personally; leaving the copies at the defendant's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or delivering copies to the defendant's agent for service ...


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