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Ellis v. Young

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

October 30, 2017

MARLON MAURICE ELLIS, Plaintiff,
v.
MS. YOUNG and MRS. HAMILTON, Defendants.

          ORDER

          BRIAN K. EFPS UNITED STATES DISTRICT JUDGE.

         Plaintiff, currently incarcerated at Augusta State Medical Prison ("ASMP") in Grovetown, Georgia, submitted to the Court for filing a complaint brought pursuant to 42 U.S.C. § 1983, and he requested permission to proceed in forma pauperis ("IFP"). (Doc. nos. 1, 2.) By Order dated August 8, 2017, the Court denied the request to proceed IFP and directed Plaintiff to submit the full $400.00 filing fee within twenty-one days. (Doc. no. 4.) Specifically, the Court found there was a balance of $6, 063.18 in his prisoner trust fund account, and he had total deposits of $9, 000.00 to his account for the past six months. (Doc. nos. 2, 3, 4.) The Court warned Plaintiff that failing to pay the $400.00 filing fee within twenty-one days would result in a recommendation for dismissal of this case without prejudice. (Doc. no. 4, p. 2.)

         Based on Plaintiff's explanation of his difficulty requesting prison officials deduct the filing fee from his prison trust account, the Court then extended the deadline for paying the full filing fee until September 15, 2017, and again warned Plaintiff the consequence of failing to pay the fee would be a recommendation for dismissal without prejudice. (See doc. nos. 5, 6.) When the September 15th deadline had passed and Plaintiff had not paid the $400.00, the Court recommended dismissing the case without prejudice. (Doc. no. 9.) Plaintiff objected to the recommendation for dismissal and provided the Court with paperwork suggesting prison officials knew about Plaintiffs obligation to pay the filing fee but had not forwarded the fee as Plaintiff had requested. (Doc. no. 11.)

         As the Court's prior recommendation for dismissal was based on the failure pay the filing fee, and Plaintiff has provided paperwork suggesting prison officials are responsible for the noncompliance, the Court VACATES it prior Report and Recommendation. (Doc. no. 9.) The Court expects prison officials will forward the $400.00 filing fee to the Court by no later than Monday, November 6, 2017. If the fee has not been paid by November 6th, the Court expects the Warden at ASMP will submit a written explanation for the delay to the Court by that same date. In any event, there is no need to further delay the progress of this case.

         Because Plaintiff is proceeding pro se, the Court will provide him with some basic instructions regarding the development and progression of this case. Initially, Plaintiff is responsible for serving Defendants. In order to properly request that Defendants waive personal service, Plaintiff must:

(1) obtain from the Clerk of Court an appropriate number of copies of[1]
(a) the notice of lawsuit and request to waive service of summons form, and
(b) the waiver of service of summons form;
(2) complete both forms for each Defendant; and
(3) mail the completed notice form, along with a copy of the file-stamped amended complaint and two waiver forms appended to Federal Rule of Civil Procedure 4, to Defendants by first class mail, with a prepaid means for returning the waiver form, and request that each Defendant waive formal service of the summons. Using the form appended to Rule 4, Defendants must be informed of the consequences of waiving and not waiving service.[2]

Fed. R. Civ. P. 4(d).

         Plaintiff must serve Defendants within ninety days from the date of this Order, and failure to do so may result in the dismissal of individual Defendants or the entire case. Fed.R.Civ.P. 4(m). Individuals, corporations, partnerships, and associations have a duty to avoid unnecessary expenses of serving the summons, and a defendant who fails to sign and return a waiver without good cause must bear the expenses incurred in making personal service. Fed.R.Civ.P. 4(d)(1) & (2). A Defendant whose return of the waiver is timely does not have to answer the complaint until sixty days after the date Plaintiff mails the request for waiver. Fed.R.Civ.P. 4(d)(3). However, should a Defendant choose not to waive personal service of the summons and complaint, Plaintiff is still responsible for properly effecting personal service. Fed.R.Civ.P. 4(c), (e).

         IT IS ORDERED that Plaintiff shall serve upon Defendants, or upon their attorney if appearance has been entered by counsel, a copy of every further pleading or other document submitted to the Court. Plaintiff shall include with the papers to be filed a certificate stating the date a true and correct copy of any document was mailed to Defendants or their counsel. Fed.R.Civ.P. 5; Loc. R. 5.1. Every pleading shall contain a caption setting forth the name of the court, the title of the action, and the file number. Fed.R.Civ.P. 10(a). Any paper received by a District Judge or Magistrate Judge that has not been properly filed with the Clerk of Court or that fails to include a caption or certificate of service will be returned.

         It is Plaintiffs duty to cooperate fully in any discovery that may be initiated by Defendants. Upon being given at least five days' notice of the scheduled deposition date, Plaintiff shall appear and permit his deposition to be taken and shall answer, under oath and solemn affirmation, any question that seeks information relevant to the subject matter of the pending action. Failing to answer questions at the deposition or giving evasive or incomplete responses to questions will not be tolerated and may subject Plaintiff to severe sanctions, including dismissal of this case. Defendants shall ...


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