Hollis v. Holloway

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

HORACE HOLLIS,

Plaintiff,

Case No. 3:24-cv-00178

v.

Judge Eli J. Richardson

JAMES M. HOLLOWAY et al., Magistrate Judge Alistair E. Newbern

Defendants.

MEMORANDUM ORDER

Pro se and in forma pauperis (IFP) Plaintiff Horace Hollis, currently confined at the

Tennessee Department of Correction’s (TDOC) Lois DeBerry Special Needs Facility (DSNF),

initiated this action on February 12, 2024,1 raising claims against four defendants under 42 U.S.C.

§ 1983. After granting Hollis’s request to proceed IFP, the Court screened his complaint as

required by 28 U.S.C. §§ 1915(e)(2) and 1915A, and 42 U.S.C. § 1997e. (Doc. No. 8.) The Court

determined that Hollis raised colorable Eighth Amendment conditions-of-confinement claims

under § 1983 against TDOC personnel “Cpl. White” and “Cpl. Murphy” and allowed those claims

to advance. (Doc. No. 8, PageID# 34.) The Court dismissed all other claims and defendants. (Id.

at 35.)

Because Hollis was granted leave to proceed IFP, he was required to identify the defendants

to be served and complete and return service packets that would allow the U.S. Marshals Service

1 Under the “prison mailbox rule[,] . . . a pro se prisoner’s [pleading] is deemed filed when

it is handed over to prison officials for mailing to the court.” Brand v. Motley, 526 F.3d 921, 925

(6th Cir. 2008) (citing Richard v. Ray, 290 F.3d 810, 812–13 (6th Cir. 2002)). The rationale for

this rule is that “pro se prisoners have no control over delays between the prison authorities’ receipt

of [a pleading] and its filing, and their lack of freedom bars them from delivering the notice to the

court clerk personally.” Houston v. Lack, 487 U.S. 266, 273–74 (1988) (emphasis in original).

to effect service on his behalf. (Id. at PageID# 35.) Hollis submitted the appropriate paperwork,

and the Clerk of Court issued summonses for White and Murphy. (Doc. No. 9.) Only White’s

summons was returned executed (Doc. No. 11).

White’s executed summons was received on May 17, 2024, and Hollis moved for entry of

default against White on August 14, 2024. (Doc. No. 14.) The Clerk of Court found that Hollis’s

motion was “defective in several respects,” specifically because it was not “accompanied by the

required unsworn declaration verifying proof of service, the opposing party’s failure to plead or

otherwise defend the action, or defendant’s age, competency, or military status.” (Doc. No. 18,

PageID# 76.) The record reflects that Murphy’s summons was returned unexecuted (Doc. No. 10).

The Marshals Service made a notation on Murphy’s summons that no one by that name works at

the facility where Hollis is incarcerated. (Id.)

“[T]he requirement of proper service of process ‘is not some mindless technicality[,]’”

Friedman v. Est. of Presser, 929 F.2d 1151, 1156 (6th Cir. 1991) (quoting Del Raine v. Carlson,

826 F.2d 698, 704 (7th Cir. 1987)), nor is it “meant to be a game or obstacle course for plaintiffs[,]”

Ace Am. Ins. Co. v. Meadowlands Dev. Ltd. P’ship, 140 F. Supp. 3d 450, 455 (E.D. Pa. 2015).

Rather, it goes to the very heart of a court’s ability to hear a case. “[W]ithout proper service of

process, consent, waiver, or forfeiture, a court may not exercise personal jurisdiction over a named

defendant.” King v. Taylor, 694 F.3d 650, 655 (6th Cir. 2012); see also Mann v. Castiel, 681 F.3d

368, 372 (D.C. Cir. 2012) (explaining that “[s]ervice is . . . not only a means of ‘notifying a

defendant of the commencement of an action against him,’ but ‘a ritual that marks the court’s

assertion of jurisdiction over the lawsuit’” (citation omitted)). Where personal jurisdiction is not

properly established, a court cannot exercise its authority consistent with due process of law. See

Friedman, 929 F.2d at 1156–57.

Federal Rule of Civil Procedure 4(m) provides that, “[i]f 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.” Fed. R. Civ. P. 4(m). The Court must extend the time for service

upon a showing of good cause, and the Court may exercise its discretion to permit late service

even where a plaintiff has not shown good cause. United States v. Oakland Physicians Med. Ctr.,

LLC, 44 F.4th 565, 568 (6th Cir. 2022) (first citing Fed. R. Civ. P. 4(m); and then citing Henderson

v. United States, 517 U.S. 654, 662 (1996)). Otherwise, Rule 4(m) mandates dismissal, either on

motion or sua sponte. Fed. R. Civ. P. 4(m); see also Byrd v. Stone, 94 F.3d 217, 219 & n.3 (6th

Cir. 1996). It is well established that Rule 4(m) empowers a court to dismiss complaints without

prejudice “upon the court’s own initiative with notice to the plaintiff.” Hason v. Med. Bd. of Cal.,

279 F.3d 1167, 1174 (9th Cir. 2002); see also Friedman, 929 F.2d at 1155 n.4 (noting that “the

issue of ineffective service of process may be raised sua sponte”).

Where, as here, a plaintiff proceeds IFP, “[t]he officers of the court shall issue and serve

all process, and perform all duties . . . .” 28 U.S.C. § 1915(d). Rule 4(c) “dovetails” with § 1915,

Byrd, 94 F.3d at 219, by providing that “[t]he court must” “order that service be made by a United

States marshal or deputy marshal or by a person specially appointed by the court” “if the plaintiff

is authorized to proceed in forma pauperis under 28 U.S.C. § 1915 . . . .” Fed. R. Civ. P. 4(c)(3).

Together, Rule 4(c)[(3)] and 28 U.S.C. § 1915([d]) stand for the proposition that

when 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.

Byrd, 94 F.3d at 219.

However, an incarcerated pro se plaintiff proceeding IFP does not automatically

demonstrate good cause for extending the Rule 4(m) deadline when the Marshals Service has been

unable to effect service of process on a defendant. Rather, courts in this circuit consider the

plaintiff's conduct and the totality of the circumstances in determining whether good cause exists

to extend the Rule 4(m) deadline. For example, in Abel v. Harp, the Sixth Circuit considered the

fact that the plaintiff diligently attempted to contact the Marshals Service “when he knew there

was a problem with service on the defendants” and the fact that “[t]he Marshals Service

[incorrectly] advised [the plaintiff] that it had served all of the defendants” before holding that

good cause existed to extend the Rule 4(m) deadline. 122 F. App’x 248, 252 (6th Cir. 2005).

By contrast, in VanDiver v. Martin, the court found that a pro se incarcerated IFP plaintiff

failed to show good cause to extend the Rule 4(m) deadline where the plaintiff “remained silent

after being put on notice that [ ] Defendants had not been served” at the address he provided

because the defendants “no longer worked for the Michigan Department of Corrections.” 304 F.

Supp. 2d 934, 941, 942 (E.D. Mich. 2004); see also Freeman v. Collins, Civ. Action No. 2:08-cv-

00071, 2011 WL 4914873, at *5 (S.D. Ohio Aug. 15, 2011) (finding that pro se incarcerated IFP

plaintiff failed to show good cause to extend Rule 4(m) deadline where he “took no action to cure

the lack of service for a significant period . . .”). Similarly, in Staub v. Nietzel, the Sixth Circuit

found that good cause did not exist to extend the Rule 4(m) deadline despite an “administrative

snafu” in which the Clerk of Court did not issue a summons for the unserved defendant because

the plaintiff “was on notice” that the defendant remained unserved, failed to inquire about the

status of service or provide additional information for service to the court, and “fail[ed] to provide

any reasonable explanation for sitting idly by for six years[.]” Case No. 22-5384, 2023 WL

3059081, at *8–9 (6th Cir. Apr. 24, 2023).

Here, service is complicated by one additional factor: the Marshals Service determined

Murphy could not be served because there was no one by that name working at DeBerry at the

time they attempted service. (Doc. No. 10.) It is unclear from the Marshals Service agent’s notation

whether no employee with the last name “Murphy” has worked at DSNF while Hollis has been

incarcerated there or Murphy worked there at the time of the incident but has since left his

employment at that facility.

Although neither Rule 4 nor § 1915 provides guidance for the Court's obligation, if any,

when the initial attempt to serve process is not effectuated, the Sixth Circuit Court of Appeals

addressed the issue in Fitts v. Sicker, 232 F. App'x 436, 443-444, 2007 WL 419623 (6th Cir. Feb.

8, 2007). There, the Court noted that it would have been permissible for the court to have directed

the Michigan Department of Corrections to provide the former employee's last known address.

Relying on Fitts, other courts have directed that governmental entities and non-defendants provide

addresses to the U.S. Marshal Service so that process could be attempted on a defendant. See

Brown v. Mohr, 2014 WL 1686194, *6 (S.D. Ohio Apr. 29, 2014); Baldwin v. Croft, 2013

WL 172870, *2 (N.D. Ohio Jan. 16, 2013); Ely v. Smith, 2008 WL 2076651, *2 (E.D. Tenn. May

15, 2008).

The Court requests the assistance of DSNF officials to assist Hollis in identifying the last

known address of Murphy. The Court therefore DIRECTS the Warden of the Lois DeBerry Special

Needs Facility or his representative to file Murphy’s last known address under seal within 14 days

of the date of this Order. If no person named Murphy worked at DSNF during the time Hollis has

been incarcerated there, the Warden shall provide that information by notice to the Court.

The Clerk's Office is DIRECTED to send a copy of this order to Warden James M.

Holloway at the Lois DeBerry Special Needs Facility, 7575 Cockrill Bend Boulevard Nashville,

Tennessee 37209-1057.

It is so ORDERED.

Abita noleon

ALIST E. NEWBERN

United States Magistrate Judge