why the docket did not reflect that he had successfully effected service on
Sexton. Moreover, because the summons was returned unexecuted less than
fourteen days later, Plaintiff could have included an explanation for his failure to
serve Sexton in any timely response.

Third, Plaintiff's continued reliance on his January 25, 2018, mailing of a
“Notice of a Lawsuit and Request to Waive Service of a Summons’ and “Waiver
of the Service of Summons’ is unavailing. Magistrate Judge Deavers previously
notified Plaintiff that the mailing of such documents does not constitute proper
service. Order, ECF No. 13 (“[T]he docket reflects neither waiver of service nor
actual service of process. Unless Defendants waive service of process, Rule
4(m) of the Federal Rules of Civil Procedure requires Plaintiff to assure that
Defendants are served with process within 90 days of the filing of the Amended
Complaint.” (citation omitted)).

Finally, Plaintiff argues that ODRC failed to return the copies of the
Amended Complaint that were mailed to it for the purpose of serving Sheets,
Sexton, Williams, and Jackson such that Plaintiff will be forced to bear the costs
of copying the Amended Complaint for his third attempt at service. He argues
that it is reasonable to assume that if ODRC received other mail for those
Defendants, it would voluntarily forward said mail to those Defendants at their
proper, current addresses and would not return it to the sender. As such, Plaintiff
argues, the Court should order ODRC to either forward the Amended Complaints

to those Defendants or provide the addresses of those Defendants to Plaintiff.

Case No. 2:17-cv-1036 Page 5 of 6


the Court dismiss the claims against those Defendants without prejudice for
failure to serve. R&R, ECF No. 25.

Plaintiff timely objected.

Magistrate Judge Deavers issued the R&R pursuant to Federal Rule of
Civil Procedure 72(b). Under that rule, the Undersigned must determine de novo
any part of the Magistrate Judge’s disposition that has been properly objected to.
Fed. R. Civ. P. 72(b)(3). The Undersigned may accept, reject, or modify the
R&R, receive further evidence, or return the matter to the Magistrate Judge with
instructions. /d.

Plaintiff's objections are overruled. First, Plaintiff states that he was
unaware of the show cause order, but there is no indication the show cause
order was returned as undeliverable or that Plaintiff otherwise properly changed
his address as it relates to receiving mail regarding this litigation.

Second, and regardless of whether Plaintiff was aware of the show cause
order, Plaintiffs contention that he could not have timely responded to the order
regarding Sexton is not persuasive. It is true that the summons was returned
unexecuted after Magistrate Judge Deavers issued the show cause order.
However, that did not render her show cause order improper or prevent Plaintiff
from responding to the same with respect to Sexton. Even though the summons
for Sexton had not been returned unexecuted at the time the show cause order
was issued, neither had the summons been returned executed at that time; thus,
it was proper for Magistrate Judge Deavers to order Plaintiff to show cause as to

Case No. 2:17-cv-1036 Page 4 of 6


It is Plaintiff's burden to properly serve Defendants. Fed. R. Civ. P. 4(c)(1)
(‘The plaintiff is responsible for having the summons and complaint served within
the time allowed by Rule 4(m) and must furnish the necessary copies to the
person who makes service.”). Accordingly, Plaintiffs speculation about how
ODRC would treat other mail directed toward these Defendants has no bearing
on whether Plaintiff satisfied his burden under Rule 4. Likewise, Plaintiff's
argument that ODRC maintains the copies of the Amended Complaint such that
Plaintiff will be forced to incur additional cost should he make another attempt at
effectuating service are unpersuasive as it is Plaintiff who provided the
addresses to USM for service. Plaintiff did not timely effect service on Sheets,
Sexton, Williams, and Jackson. Accordingly, the R&R is ADOPTED, and the

Court DISMISSES WITHOUT PREJUDICE the claims against them.

Niche WL,

MICHAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT

IT IS SO ORDERED.

Case No. 2:17-cv-1036 Page 6 of 6


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Norman V. Whiteside,

Plaintiff,

Vv. Case No. 2:17-cv-1036
Trayce Thalheimer, et al., Judge Michael H. Watson

Defendants. Magistrate Judge Deavers

OPINION AND ORDER

Plaintiff, proceeding pro se, filed a Complaint in this case in November
2017. Compl., ECF No. 1. The case was thereafter transferred from the
Western Division of this Court to the Eastern Division and assigned to the
Undersigned. Magistrate Judge Deavers ordered Plaintiff to file a
comprehensive Amended Complaint, Order, ECF No. 3, which Plaintiff did on
January 16, 2018, Am. Compl., ECF No. 6.

Thereafter, Magistrate Judge Deavers issued an Order noting that Plaintiff
had not yet presented completed summonses or service copies of his Amended
Complaint to the Clerk’s Office for signature and seal consistent with Federal
Rule of Civil Procedure 4(b). Order, ECF No. 9. Magistrate Judge Deavers
warned Plaintiff that he must submit a properly completed summons for each
Defendant that he intended to serve and that he must assure Defendants are
served with process within ninety days of the filing of the Amended Complaint.

Id. She also warned Plaintiff that, if he intended for the United States Marshal


(“USM”) to effect service, Plaintiff must still submit a completed summons, a
Marshal service form, and service copies of the Amended Complaint for each of
the thirteen named Defendants. /d. Finally, she wamed Plaintiff that the action
would be dismissed without prejudice for failure to serve if Plaintiff failed to effect
service within ninety days. Id.

In response, Plaintiff filed a document titled, “Plaintiffs Notice of Service of
AO 398 and AO Forms.” Notice, ECF No. 10. Plaintiff stated that he mailed, via
the United States Postal Service, a “Notice of a Lawsuit and Request to Waive
Service of a Summons,” a “Waiver of the Service of Summons,” and copies of
the Amended Complaint to Defendants. /d. He stated that his tracking number
for the mail showed that the mail was delivered. /d.

On April 17, 2018, Magistrate Judge Deavers issued an Order stating that
service of process had not been completed as required by Rule 4(m) and
ordering Plaintiff to show cause why the case should not be dismissed and why
an extension of time to effect service should be granted. Order, ECF No. 11.
The Order specifically required any good cause to be supported with sworn
affidavits. Id.

Plaintiff responded that he “had a good faith belief that [his mailing of the
‘Notice of a Lawsuit and Request to Waive Service of a Summons,’ the ‘Waiver
of the Service of Summons,’ and the copies of the Amended Complaint] would
satisfy service requirements at least temporarily since it was contingent upon

Defendants to respond accordingly.” Resp., ECF No. 12. Plaintiff ultimately

Case No. 2:17-cv-1036 Page 2 of 6


requested additional time to complete “appropriate summons and marshal forms
to effect further service upon Defendants.” /d.

Magistrate Judge Deavers issued a further Order explaining to Plaintiff that
“[ujnless Defendants waive service of process, Rule 4(m) of the Federal Rules of
Civil Procedure requires Plaintiff to assure that Defendants are served with
process within 90 days of the filing of the Amended Complaint.” Order, ECF No.
13. Although the response was not accompanied by the required sworn
affidavits, Magistrate Judge Deavers granted Plaintiffs request for additional time
to effect service and for the USM to effect service. /d. She specifically warned
Plaintiff that he “must submit a completed summons, a Marshal service form, and
service copies of his Amended Complaint for each of the thirteen (13) named
Defendants.” /d.

The USM thereafter served by certified mail a copy of the summons and
Amended Complaint to each of the thirteen Defendants using the addresses
provided by Plaintiff. Notice, ECF No. 14. The Ohio Department of
Rehabilitation and Correction (‘ODRC’) Legal Services accepted the certified
mail for all thirteen Defendants but later notified the Court that it had accepted
the certified mail in error as to Michael Sheets (“Sheets”), Kenny Sexton
(‘Sexton’), Karla Williams (“Williams”), and Michael Jackson (“Jackson”), as
those individuals no longer worked for ODRC when the mail was accepted. ECF
Nos. 15, 16, 22. As service on those individuals was not effected, Magistrate
Judge Deavers issued a Report and Recommendation (“R&R”) recommending

Case No. 2:17-cv-1036 Page 3 of 6