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Thomas v. Spivey

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

April 30, 2019

DONTA LEE THOMAS, Plaintiff,
v.
JUDGE ANDREW SPIVEY; and CHRIS ROSAR, Defendants.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Plaintiff's Response to this Court's Show Cause Order issued on February 27, 2019. Docs. 6, 7. For the reasons discussed below, the Court DIRECTS the Clerk of Court mail Plaintiff copies of Forms AO 398 and 399 and a copy of Rule 4 of the Federal Rules of Civil Procedure. The Court ORDERS Plaintiff to file proof of service with this Court as to Defendant Rosar within 60 days of this Order. The Court also ORDERS Plaintiff to continue to double-space all of his future filings with this Court. Finally, I RECOMMEND the Court DISMISS Plaintiff's claims against Defendant Spivey.

         BACKGROUND

         Plaintiff filed this action on February 5, 2018, while in pre-trial detention at the Coffee County Jail in Douglas, Georgia. Doc. 1. Plaintiff seeks damages and equitable relief related to an ongoing state criminal proceeding against him in the Superior Court of Coffee County. Id.; Doc. 4 at 2-4; Doc. 5 at 1-4. Plaintiff is proceeding pro se but has not asked to proceed in forma pauperis (as is common of incarcerated litigants who are proceeding pro se). Instead, Plaintiff paid the entire filing fee at the time he submitted his Complaint. Doc. 1-1. On February 27, 2019, this Court ordered Plaintiff to show cause as to why he had not yet perfected service of process on either Defendant. Doc. 6. Plaintiff responded on March 7, 2019. Doc. 7.

         Plaintiff's Response indicates he failed to serve Defendants because he misunderstands the procedure required to successfully bring and maintain an action in this Court. Id. Construed liberally, Plaintiff seems to be arguing that, because he paid the filing fee and is proceeding pro se in this case, the Court must order the United States Marshals Service to perfect service automatically, without a request from the pro se plaintiff.[1] As explained below, Plaintiff is mistaken. Plaintiff is obligated to serve his adversaries with process, unless the Court orders otherwise, and the Court has not done so in this case.

         DISCUSSION

         I. Plaintiff's Cause for Delay in Serving Defendants

         Importantly, in forma pauperis status is not the same as proceeding pro se. Proceeding pro se simply means the individual is not represented by counsel. A litigant who moves to proceed in forma papueris asserts he is indigent and unable to pay the filing fees and court costs associated with the action. 28 U.S.C. § 1915. While it is common for prisoners to proceed pro se and request in forma pauperis status, it is not required. “[I]t is possible for a plaintiff to file in forma pauperis while represented by counsel.” Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). It is likewise permissible for a pro se party to pay the entire filing fee upfront, forgoing in forma pauperis status, as Plaintiff has done in this case.

         Proceeding in forma pauperis has two important effects. First, the plaintiff is not required to pay the entire filing fee up front at the time he files the action. 28 U.S.C. § 1915(a)(1). Second, if in forma pauperis status is granted, the court will assume the obligation to “issue and serve all process . . . .” § 1915(d); Fed. R. Civ. P 4(c)(3) (requiring courts order service of process when “the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915”); Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010) (“When a court grants a litigant leave to proceed IFP, the officers of the court must ‘issue and serve all process.'”) (quoting 28 U.S.C. § 1915(d)); Rance v. Rocksolid Granit USA, Inc., 583 F.3d 1284, 1286-87 (11th Cir. 2009). In other words:

[W]hen a plaintiff is proceeding in forma pauperis the court is obligated to issue plaintiff's process to a United States Marshal who must in turn effectuate service upon the defendants, thereby relieving a plaintiff of the burden to serve process once reasonable steps have been taken to identify for the court the defendants named in the complaint.

Rance, 583 F.3d at 1286. But when a plaintiff-pro se or otherwise-does not move to proceed in forma pauperis, the Court does not bear the burden of ordering service of process, and the plaintiff remains responsible for service. See § 1915(d); Fed.R.Civ.P. 4(c)(3); Ezzard v. Ajibade, No. CV 314-141, 2015 WL 1880293, at *4 (S.D. Ga. Apr. 24, 2015).

         Under Federal Rule of Civil Procedure 4(c)(3), a plaintiff who is not proceeding in forma pauperis may, like all plaintiffs, ask the court to order the United States Marshal to serve process. Fed.R.Civ.P. 4(c)(3). It is within the court's discretion whether to grant such requests. Pruitt v. Langer Transp. Corp., No. 3:17-CV-570-WC, 2018 WL 3326847, at *1 (M.D. Ala. Jan. 23, 2018) (explaining “court appointment of a special process server [under Federal Rule of Civil Procedure 4(c)(3)] is discretionary”). If plaintiff does not make the request, or the court does not grant the request, the plaintiff remains responsible for perfecting service of process on the defendants in the action. Ezzard, 2015 WL 1880293, at *4 (noting that such litigants remain responsible for effectuating service).

         Because Plaintiff paid the entire filing fee at the time he initiated this action, he is a pro se prisoner who is not proceeding in forma pauperis. Plaintiff, therefore, “has the responsibility for serving Defendants and may not rely on the Marshals to do so.” Id. at *5. Though Plaintiff claims he made subsequent filings “in effort to get the Court to grant the Plaintiff [permission to] proceed under” Rule 4(c)(3), at no point did Plaintiff actually make such a request.[2] Docs. 1, 2, 3, 4, 5. Plaintiff has failed to take any affirmative steps to perfect service on the Defendants or ask the Court to direct the United States Marshals to serve Defendants. Nonetheless, it appears that Plaintiff's failure is due to a genuine misunderstanding of the Rules and not improper delay or bad faith.

         The Court, therefore, finds good cause exists to extend the time of service. See Fed.R.Civ.P. 4(m). Additionally, the Court DIRECTS the Clerk of Court to mail Plaintiff blank copies of Forms AO 398 and 399, as well as a copy of Rule 4 of the Federal Rules of Civil Procedure. The Court further ORDERS Plaintiff to perfect service on Defendant Rosar personally or by waiver and submit proof of service to the Court within 60 days of the date of this Order.[3] If Plaintiff fails to perfect service, his action may be ...


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