Morris v. Arkansas Department of Correction

• Court: District Court, E.D. Arkansas
• Decided: October 31, 2024
• Docket: 4:23-cv-00303
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION

JONATHAN MORRIS PLAINTIFF ADC #150394

V. Case No. 4:23-CV-00303-JM-BBM

BASS, Sergeant DEFENDANT

RECOMMENDED DISPOSITION The following Recommended Disposition (“Recommendation”) has been sent to United States District Judge James M. Moody, Jr. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection; and (2) be received by the Clerk of this Court within fourteen (14) days of the date of this Recommendation. If you do not file objections, Judge Moody may adopt this Recommendation without independently reviewing all of the evidence in the record. By not objecting, you may waive the right to appeal questions of fact. I. DISCUSSION On March 28, 2023, Plaintiff Jonathan Morris (“Morris”), a prisoner incarcerated in the Cummins Unit of the Arkansas Division of Correction (“ADC”), filed a pro se Complaint pursuant to 42 U.S.C. § 1983, alleging that his constitutional rights were violated. (Doc. 2). He subsequently filed an Amended and Substituted Complaint, which is considered the operative complaint in this action. (Doc. 9). On December 28, 2023, Judge Moody accepted this Court’s Recommendation that Morris be allowed to proceed with a failure-to-protect claim against Sergeant Smith and an excessive force claim against Sergeant Bass, in their individual capacities only. (Docs. 11, 12). All other claims and defendants were dismissed, and service was deemed to be appropriate. (Docs. 12, 13).

The Court directed the United States Marshal to serve the summonses, Amended and Substituted Complaint (Doc. 9), and Order directing service on Defendants Smith and Bass through the ADC Compliance Division. (Doc. 13). The summons issued for Defendant Bass was originally docketed as “executed.” (Doc. 14). But the ADC Compliance Division later sent a corrected memorandum, stating that Bass no longer

worked at the ADC. (Doc. 14). Thus, the summons was re-docketed as “unexecuted,” and the ADC Compliance Office provided Bass’s last-known address under seal. (Doc. 17). Service was attempted at that address via certified mail and personal service. (Docs. 18, 20–21). Both were returned unexecuted, and it was noted that Bass no longer lived at the provided address. (Docs. 20, 22).

The Court instructed Morris that he has the burden to provide the information necessary to serve the Defendants and ordered him to file a Motion for Service containing the information necessary to properly identify Bass. (Doc. 24 at 1–2) (citing Lee v. Armontrout, 991 F.2d 487, 489 (8th Cir. 1993)). Morris was cautioned that failure to file a Motion for Service by September 23, 2024, would lead to his claim against Bass being

dismissed without prejudice. (Doc. 24 at 1) (citing FED. R. CIV. P. 4(m)). Morris has not complied with this Court’s Order, and the time to do so has passed. Therefore, it is recommended that Morris’s claim against Bass be dismissed without prejudice due to a lack of service. See FED. R. CIV. P. 4(m) (stating a court may dismiss a defendant who has not been served within ninety days of the filing of the complaint); Lee, 991 F.2d at 489 (holding it is a pro se plaintiff's responsibility to provide a valid service address for each defendant); Coleman v. Newton, 334 F. App’x 52, 53 (8th Cir. 2009) (affirming dismissal of prisoner’s § 1983 complaint without prejudice after he failed to provide the information needed to serve defendants). Il. CONCLUSION IT IS THEREFORE RECOMMENDED THAT: 1. Morris’s claim against Defendant Bass be DISMISSED without prejudice due to a lack of service. 2. Judgment be entered accordingly.! 3. The Court CERTIFY, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis appeal from any order adopting this Recommendation or accompanying judgment would not be taken in good faith. DATED this 31st day of October, 2024. | yn a Uarove- ITED STATES MAGISTRATE JUDGE

' Morris’s claim against Defendant Smith was previously dismissed without prejudice for lack of service. (Doc. 24).