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Clark v. Sheffield

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

January 5, 2018

ARTHUR LAWTON CLARK, Plaintiff,
v.
LYNN SHEFFIELD, Sheriff; LT. TOMMY BARRENTINE; and DR. PETER WROBEL, Defendants.

          ORDER

          ERIAN K. EPPS MAGISTRATE JUDGE.

         Before the Court is Plaintiff's Repayment Request for Unnecessary Expenses in Service of Process. (Doc. no. 26.) For the reasons set forth below, the Court DENIES Plaintiff's motion.

         I. BACKGROUND

         Plaintiff, an inmate at Johnson State Prison in Wrightsville, Georgia, commenced this § 1983 case pro se and paid the $400.00 filing fee. Because he was proceeding pro se, the Court provided him with basic instructions regarding the development and progression of this case, including an explanation that Plaintiff is responsible for serving each defendant and how service could be accomplished. (Doc. no. 2, pp. 1-2.) The Court specifically informed Plaintiff that, under Fed.R.Civ.P. 4(m), he had 90 days from the complaint filing to accomplish service and that failure to accomplish service could result in dismissal of individual defendants or the entire case. (Id. at 2.)

         Plaintiff allegedly served Dr. Wrobel with a request for waiver of service on May 16, 2017. (Doc. no. 26, pp. 2, 5.) When no waiver was returned, Plaintiff acquired Summons for Dr. Wrobel from the Clerk of Court on June 28, 2017. (Doc. no. 4.) On July 31, 2017, Dr. Wrobel received a copy of the Summons, but it did not include a copy of the Complaint or a request to waive service. (Doc. no. 28-1, Ex. A, ¶ 3.)

         On August 4, 2017, the Court directed Plaintiff to show cause as to why he had not served Defendant Wrobel within the time allotted by Fed.R.Civ.P. 4(m). (Doc. no. 8.) Plaintiff responded, indicating the people he had instructed to serve Defendant Wrobel incorrectly served him only with the summons and no complaint and asking for an extension of time to properly serve Defendant Wrobel. (Doc. nos. 10, 12.) In the meantime, on August 17, 2017, Dr. Wrobel filed a Motion to Dismiss based on insufficient service of process, lack of personal jurisdiction, and failure to file within the applicable statute of limitations. (Doc. no. 11.) The Court extended the time for service until October 2, 2017, and held the Motion to Dismiss in abeyance until the extended time for service had passed. (Doc. no. 14.)

         On September 1, 2017, the Clerk of Court issued a new Summons for Dr. Wrobel. (Doc. no. 15.) On September 25, 2017, Dr. Wrobel received a copy of the new Summons and the Complaint, but again did not receive a request to waive service. (Doc. no. 28-1, Ex. A, ¶ 5.) Dr. Wrobel filed his answer on October 13, 2017. (Doc. no. 20.)

         II. DISCUSSION

         Federal Rule of Civil Procedure 4(c), which governs service of the complaint, states in relevant part:

(1) In General. A summons must be served with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service.

Fed. R. Civ. P. 4(c). However, in lieu of personal service, a plaintiff may request a defendant waive service, as set forth in Federal Rule of Civil Procedure 4(d):

(1) Requesting a Waiver. An individual, corporation, or association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the summons. The plaintiff may notify such a defendant that an action has been commenced and request that the defendant waive service of a summons. The notice and request must:
(A) be in writing and be addressed:
(i) to the individual defendant; or ...

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