The opinion of the court was delivered by: J. GILBERT, District Judge
This matter comes before the Court on the Report and
Recommendation ("Report") (Doc. 75) of Magistrate Judge Donald G.
Wilkerson recommending that the Court dismiss plaintiff Ozzie
Pickett's ("Pickett") claims in this case against defendants
Terri Damond, J. Grubbs, J. Jones, A. Jordan, Kay Jordan, Gray
Knop, Ronald Lee, J. Parrish and K. Sawyer without prejudice for
failure to serve process.
After reviewing a magistrate judge's report and recommendation,
the Court may accept, reject or modify, in whole or in part, the
findings or recommendations of the magistrate judge in the
report. Fed.R.Civ.P. 72(b). The Court must review de novo
the portions of the report to which objections are made. The
Court has discretion to conduct a new hearing and may consider
the record before the magistrate judge anew or receive any
further evidence deemed necessary. Id. "If no objection or only
partial objection is made, the district court judge reviews those
unobjected portions for clear error." Johnson v. Zema Systems
Corp., 170 F.3d 734, 739 (7th Cir. 1999).
The Court begins its review by taking a quick look at the
procedural history of this case, focusing on the events leading
to the Report. Pickett began this case in October 2002 in the
Circuit Court of the First Judicial Circuit, Alexander County,
Illinois. The Circuit Court granted Pickett leave to proceed in forma pauperis and Pickett claims
that it directed the Alexander County sheriff to serve process on
the defendants. It is unclear whether all defendants were served
with process while this case was pending in state court.
Nevertheless, a group of defendants recognized that the causes of
action against them asserted claims under federal law and removed
the case to this Court in February 2003. Pickett did not move for
leave to proceed in forma pauperis in federal court, and for
good reason. It is highly unlikely the Court would have granted
him such status in view of the fact that he has had three or more
prior prisoner actions dismissed on the grounds that they were
frivolous, malicious or failed to state a claim upon which relief
may be granted. See 28 U.S.C. § 1915(g); see, e.g., Pickett v.
Page, 96-cv-416 (S.D. Ill. 1996) (Doc. 6); Pickett v. Page,
96-cv-1066 (S.D. Ill. 1997) (Doc. 4); Pickett v. Washington,
98-cv-455 (S.D. Ill. 1998) (Doc. 5); see also Pickett v. Circuit
Court of Alexander Co., 02-cv-901 (S.D. Ill. 2002) (Doc. 4)
(citing foregoing three strikes).
On September 13, 2004, the Court noted that defendants Terri
Damond, J. Grubbs, J. Jones, A. Jordan, Kay Jordan, Gray Knop,
Ronald Lee, J. Parrish and K. Sawyer had not entered appearances
in this case or joined in the remand, assumed that service had
not been accomplished on those defendants, and allowed Pickett 60
days in which to serve them with process. In response, Pickett
states that in November 2004 he attempted service by mailing
eight copies of the Complaint to the assistant attorney general
who represented a group of other defendants in this case. This
attempt to serve did not comply with Federal Rule of Civil
Procedure 4, and the deficiency in service was again noted by
Magistrate Judge Donald G. Wilkerson on April 29, 2005.
Magistrate Judge Wilkerson issued an order to show cause why
Pickett's claims against the nine unserved defendants should not
be dismissed pursuant to Federal Rule of Civil Procedure 4(m).
Pickett did not respond to the order to show cause, which resulted in the pending Report recommending dismissal of the nine
unserved defendants from this case.
Pickett has filed an objection to the Report (Doc. 81) in which
he argues that the Court should never have required him to serve
the nine defendants because they had been properly served by the
Alexander County sheriff when the case was pending in state court
or, in the alternative, that the nine defendants were properly
served by mail through the Attorney General's Office. He further
implies that the Court should have appointed the U.S. Marshal
Service to serve process for him on the nine defendants and
should have remanded this case to state court. He does not
attempt to explain his failure to respond to Magistrate Judge
Wilkerson's order to show cause, and he does not attach any
evidence that the nine defendants were, in fact, served with
process by the Alexander County sheriff.
The Court reviews the Report de novo. Federal Rule of Civil
Procedure 4(m) governs the time in which process must be served.
That rule provides, in pertinent part:
If service of the summons and complaint is not made
upon a defendant within 120 days after the filing of
the complaint, the court, upon motion or on its own
initiative after notice to the plaintiff, shall
dismiss the action without prejudice as to that
defendant or direct that service be effected within a
specified time; provided that if the plaintiff shows
good cause for the failure, the court shall extend
the time for service for an appropriate period.
Fed.R.Civ.P. 4(m). Courts have interpreted Rule 4(m) to
require a court to grant an extension if the plaintiff shows good
cause, but to leave it to the court's discretion whether to grant
an extension if the plaintiff shows excusable neglect. Coleman
v. Milwaukee Bd. of Sch. Dirs., 290 F.3d 932
, 934 (7th Cir.
In this case, several things are very clear. It is clear that
the Court has removal jurisdiction over this case based on the
presentation of federal questions and that remand is improper. It is beyond question that each of the nine defendant
needed to be served with process, or to have waived service, in
order to bring them under the jurisdiction of the Court. It is
equally clear that Pickett's attempt to serve the nine defendants
with the Complaint by mail through the Attorney General's Office
did not satisfy the other provisions of Rule 4 that set forth the
manner in which a defendant can be served with a summons and
complaint or can waive such service. Finally, it is clear that
the Court was not in error to fail to appoint the U.S. Marshal
Service to serve process in this case; Pickett was not granted
leave to proceed in federal court in forma pauperis*fn1
and never asked the Court to appoint the U.S. Marshal Service to
serve the summons and complaint for him.
Several other things are less clear. Pickett claims that all
nine defendants at issue were served by the Alexander County
sheriff, but he has provided no evidence, such as a return of
service, showing that service was actually accomplished. It
appears, though, that if he believed that the defendants were so
served, his failure to serve them once the case reached federal
court could amount to excusable neglect which could justify an
extension of the service period. The Court believes that the wisest course of action would be to allow
Pickett an opportunity to provide evidence of service by the
Alexander County sheriff and, if such evidence is unavailable, to
allow Pickett a short period in which to accomplish service at
this time. Accordingly, the Court ORDERS that Pickett shall
file on or before December 2, 2005, one of the following as to
each of the nine defendants discussed in this order:
A return or waiver of service from the proceedings
in Alexander County Circuit Court; or
A return or waiver of service showing that the
respective defendant has been properly served
pursuant to Federal Rule of Civil Procedure 4.
The Court WARNS Pickett that it is running out of patience
with his failure to act on this issue. He has known service was a
problem since the Court's order of September 13, 2004, and he has
known since at least April 29, 2005, that his attempt at service
by mail was unsuccessful. His failure to respond to Magistrate
Judge Wilkerson's order to show cause is inexcusable and would,
in itself, justify dismissal of the nine defendants from this
case. Nevertheless, in an abundance of caution, the Court will
allow Pickett one more chance to resolve the service issue in his
favor. If Pickett fails to file a return or waiver of service
for either defendant Terri Damond, J. Grubbs, J. Jones, A.
Jordan, Kay Jordan, Gray Knop, Ronald Lee, J. Parrish or K.
Sawyer, Pickett's claims against that defendant will be dismissed
without prejudice. Pickett will receive no further chances. The
Court RESERVES RULING on whether it will adopt the Report (Doc.
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