United States District Court, D. Massachusetts
Talwani United States District Judge
before the court are Plaintiff Danny Ferreira's
Motion for Default [#17]; Defendant Justin
Prario's Motion to Dismiss [#26];
Plaintiff's Revised Motion for Leave to Amend
[#28] seeking leave to file a Second Amended Complaint;
Plaintiff's Motion to Waive Service [#31]; and
the Magistrate Judge's August 11, 2016, Report and
Recommendation Re: Defendants' Motion to Dismiss the
Complaint (Docket Entry # 26) Memorandum and Order Re:
Plaintiff's Motion to Amend the Complaint (Docket Entry #
28) [“Report and Recommendation”] [#33].
Plaintiff's Motion for Default
court DENIES as moot Plaintiff's Motion for
Default [#17] as to Prario. Plaintiff successfully
served Defendant Prario. See Process Receipt and
Return [#15]. Defendant Prario failed to file a timely
response. As discussed below, the court allows Plaintiff to
file his proposed Second Amended Complaint, and that Second
Amended Complaint does not name Defendant Prario.
court DENIES Plaintiff's Motion for Default
[#17] as to Defendants Michael Corsini, Nelson Julius, and
Greg Hyde. Plaintiff's attempt to serve these Defendants
was unsuccessful. See Process Receipt and Return
Defendant Justin Prario's Motion to Dismiss
court ADOPTS the Magistrate Judge's recommendation that
Defendant Prario's Motion to Dismiss [#26] be
DENIED as moot.
court also DENIES the motion to dismiss for failure to serve
Defendants Corsini, Julius, and Hyde. These Defendants joined
in the (now moot) Defendant's Motion to Dismiss
[#26] for the purpose of raising service issues.
clerk docketed Plaintiff's pro se complaint and
motion for leave to proceed in forma pauperis on
November 4, 2013. Plaintiff was directed to file a certified
prison account statement, Procedural Order [#4],
and, on November 27, 2013, Plaintiff submitted his renewed
motion for leave to proceed in forma pauperis with a
certified prison account statement. See Application
Proceed D. Ct. Without Prepaying Fees or Costs (Short Form)
[#6]; Mass. Dep't Corr. Inmate Transaction Hist. Summary
Rep. [#6-1]. On January 8, 2014, Plaintiff was granted leave
to proceed in forma pauperis and a partial filing
fee was assessed. See Memorandum and Order [#7].
Under the screening provisions of 28 U.S.C. §
1915(e)(2)(B)(ii), Plaintiff was ordered to file an amended
complaint within 42 days or his action would be dismissed.
Id. On February 18, 2014, Plaintiff filed his
Amended Verified Civil Complaint [#10]. Throughout
this entire period, no summonses were issued.
30, 2014, Plaintiff submitted an inquiry to the clerk as to
the status of the case. Letter [#11]. On November
25, 2014, the clerk was directed to issue summonses, and the
United States Marshal was directed to serve the summonses and
a copy of the amended complaint upon the Defendants as
directed by Plaintiff with all costs of service to be
advanced by the United States. See Order [#12].
Plaintiff was directed to complete service within 120 days.
Id. On November 26, 2014, summonses were issued and
sent to Plaintiff. See Summons Civ. Action [#13];
return of service docketed with the court shows that
Plaintiff promptly dated his requests for service on December
8, 2014, the requests for service were stamped by the United
States Marshal on December 16, 2014, but that the United
States Marshal did not acknowledge receipt until March 18,
2015, service was not attempted until May 1, 2015, and the
returns were not filed with the clerk's office until May
8, 2015. See Process Receipt and Return [#15]. The
returns show that service was not completed as to Defendants
Corsini, Julius, and Hyde because they were no longer at the
Massachusetts Treatment Center. Id.
15, 2015, counsel filed an unqualified Notice of
Appearance [#16] on behalf of these Defendants and made
no correction to that Notice for almost four months.
time the Complaint was filed, and at the time the summonses
were issued, Rule 4 provided that “[i]f a defendant is
not served within 120 days, 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 rule provides further that “[i]f
the plaintiff shows good cause for the failure, the court
must extend the time for service for an appropriate
period.” Id. (emphasis added). Here, Plaintiff
could not attempt service within 120 days of the filing of
the complaint as no summonses had issued. See
Process Receipt and Return [#15]. Once the summonses had
issued, the record shows due diligence in providing the
summonses and Amended Complaint to the United States Marshals
Service. See Process Receipt and Return [#15]; Pl.s
Mot. Enlargement Time & Req. Leave to Amend [#27].
Thereafter, the United States Marshals Service did not
attempt service within 120 days, but Plaintiff cannot be
blamed for this delay. See Process Receipt and
Return [#15]. Finally, after the United States Marshal
reported that service was not completed, counsel for
Defendants filed a general notice of appearance, which could
have been understood by Plaintiff as a waiver of service.
See Process Receipt and Return [#15]; Not.
on de novo review, the court rejects the Magistrate
Judge's conclusion that Plaintiff's actions regarding
service “bespeaks a lack of diligence” and that
“a dismissal of the complaint as to Corsini, Julius and
Hyde for lack of service is appropriate.” See
Report and Recommendation 11 [#33]. The court finds that
Plaintiff has shown good cause for his ...