Ball v. McCoullough
| Decision Date | 09 July 2019 |
| Docket Number | Case No.: 2:16-cv-01425-RDP |
| Parties | JIM HENRY BALL, JR., Plaintiff, v. R. MCCOULLOUGH, et al., Defendants. |
| Court | U.S. District Court — Northern District of Alabama |
This case is before the court on the Motion for Summary Judgment filed by the following Defendants: the City of Birmingham, Verlyne Moten1, Freida Taylor, Lawerence Singleton, Deidre Daniels, Emantic Bradford, Timothy Brown, Coyrrie Campbell, and Kathie Davis (collectively, "the Movants").2 (Doc. # 182). Consistent with the Eleventh Circuit's decision in McBride v. Sharpe, 981 F.2d 1234, 1236 (11th Cir. 1993), the court gave the pro se Plaintiff, Jim Henry Ball, Jr., "express, ten-day notice of the summary judgment rules, of his right to file affidavits or other materials in opposition to the motion, and of the consequences of default." (Doc. # 184).3 The parties have fully briefed the motion. (Docs. # 183, 190, 191). For the reasons explained below, the Movants' Motion for Summary Judgment is due to be granted in part and denied in part.
Mr. Ball filed this civil action in the Circuit Court of Montgomery County, Alabama on May 20, 2016. (Doc. # 1-1 at 1). On July 7, 2017, Dr. Paul O'Leary, who is no longer a party, removed the case to the United States District Court for the Middle District of Alabama. (Id.).4 On August 29, 2016, the Middle District of Alabama transferred the case to this district. (Doc. # 1 at 10; Doc. # 13). Mr. Ball filed an Amended Complaint on January 9, 2017. (Doc. # 43).
On May 3, 2017, this court appointed attorney David Gespass "for the limited purpose of drafting a second amended complaint which raises cognizable claims and complies with the Federal Rules of Civil Procedure." (Doc. # 73 at 1). On June 19, 2017, Mr. Gespass filed a Second Amended Complaint on Mr. Ball's behalf. (Doc. # 74). The claims in the Second Amended Complaint relate to (1) Mr. Ball's confinement in the Birmingham City Jail (the "Jail"), and (2) Mr. Ball's treatment while at Grandview Medical Center5 in January 2015. (Doc. # 74). The Second Amended Complaint named the following parties as Defendants:6
On June 22, 2017, the court dismissed the Defendants ") who Mr. Ball named in the Complaint and/or First Amended Complaint,but did not name in the Second Amended Complaint. (Doc. # 76). In its Order, the court specifically noted that "[t]his action will proceed against Defendants City of Birmingham, Davis, Singleton, Taylor, Campbell, Nunn, Sheffield, Debra, Rogers, T. Brown, Moten, Drake, Bradford, Daniels, and Callahan." (Doc. # 76, at 1, n. 1). The parties and the court have come to refer to the individually named Defendants as the "City Defendants."
On August 1, 2017, the court gave Mr. Ball leave to amend his complaint and provided the following instructions:
His amendment should detail the specific facts alleged regarding Defendant Fowler, as well as the legal claims Plaintiff intends to pursue against Defendant Fowler. Plaintiff SHALL include any other changes he desires to make to his complaint in this amendment.
(Doc. # 88 at 1). On August 11, 2017, Mr. Ball filed a Third Amended Complaint which added claims only against Defendant Fowler. (Doc. # 97). On October 17, 2017, the court severed Mr. Ball's claims against Defendant Callahan into a separate case, dismissed Mr. Ball's federal claims against Defendant Callahan, and remanded Mr. Ball's case against Defendant Callahan to the Circuit Court of Montgomery County, Alabama. (Doc. # 118).
On November 1, 2017, Defendant Fowler filed a Motion for More Definite Statement pursuant to Rule 12(e) of the Federal Rules of Civil Procedure. (Doc. # 123). On November 6, 2017, the court granted that motion and ordered Mr. Ball to re-plead his claims against Defendant Fowler. (Doc. # 124). On November 13, 2017, Mr. Ball filed a Fourth Amended Complaint asserting claims only against Defendant Fowler. (Doc. # 127). To be clear, the Third and Fourth Amended Complaints were actually only "amendments to" the Second Amended Complaint, as each merely added Fowler as a party and asserted claims against Fowler alone. The court dismissed Defendant Fowler on January 22, 2018, and the Second Amended Complaint once again became the "operative complaint in this case." (Doc. # 145 at 9).
The record reflects that Mr. Ball executed service on several of the City Defendants on March 21, 2017. (Doc. # 65). On April 4, 2017, those Defendants contested service arguing that service "was improperly accomplished, by attempting to serve the City of Birmingham's Legal Department and/or Birmingham City Clerk's office, by hand delivery on or about March 15, 2017." (Doc. # 66 at 5; see also Doc. # 67). On June 22, 2017, after the filing of the Second Amended Complaint, the court noted:
Before Plaintiff filed his second amended complaint, certain Defendants maintained that they were improperly served. The court will conduct a telephone conference on July 5, 2017 at 11:00 a.m. to discuss this issue with Plaintiff and the remaining Defendants.
(Doc. # 76 at 2). The court held the telephone conference as scheduled, but Mr. Ball did not attend. (Minute Entry July 5, 2017). Following that conference, the court entered the following Order:
Defendants Nunn, Sheffield, Debra, T. Brown, and Drake have not been served for purposes of this action. Plaintiff is DIRECTED to request service and provide sufficient identifying information for these Defendants on or before July 21, 2017. Failure to do so may result in dismissal of this action against those Defendants.
The court held a hearing in this matter on August 11, 2017, after which, at the direction of the court, Mr. Ball met with counsel for the Defendants upon whom he had perfected service at that time. (Doc. # 88 at 1). Thereafter, the City provided the Clerk of Court the name and address of "Timothy Brown" for "T. Brown," and "George Drake" for "Drake." (Doc. # 89 at 1). The City represented that it "does not have the personal addresses or knowledge of the location of 'Nunn', 'Sheffield' and 'Debra' as they are not employed by the City and have never been employed with the City." (Doc. # 89 at 2).
Thereafter, service was executed upon Timothy Brown, but was returned unexecuted as to George Drake. (Docs. # 94, 133). On December 4, 2017, after Mr. Ball referred to George Drake as "non-existing," and "not [a] Defendant[] to this instant [case]," the court dismissed George Drake and ordered Mr. Ball to provide the court with the full name [and address] of Drake." (Doc. # 137 at 1) (citing Doc. # 131 at 2). The court's December 4, 2017, Order "terminated" Drake in the court's CM/ECF system (Doc. # 137), and Drake remains terminated.19
Thereafter, despite the fact that the court did not name Rogers as an unserved Defendant, Mr. Ball served discovery requests upon the Defendants seeking the full name and last known address of Rogers, as well as Drake, Nunn, Debra, and Sheffield. (See Doc. # 168). The City eventually identified a person known as "Judy Drake" who might be the "Drake" Mr. Ball wished to sue. On September 4, 2017, the court Ordered the City of Birmingham to provide the full name and last known address, if they had it, of Judy Drake. (Doc. # 171 at 2). The court did not issue a similar order regarding Nunn, Debra, Rogers, and Sheffield, because the City of Birmingham "[had] previously advised the court and Plaintiff that it does not have the personal addresses or knowledge of the location of [these individuals] because they are not, and never have been, employed by the City." (Doc. # 171 at 2) (citing Doc. # 89 at 2)). On September 6, 2018, the City of Birmingham confirmed that they did not have the address of Judy Drake. (Doc. # 173).
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 servicebe made within a specified time." More than 90 days has passed since the operative complaint naming Defendants Nunn, Sheffield, Debra, and Rogers was filed. (Doc. # 74 at 4, ¶ 11) (filed June 19, 2017). As noted above, the court gave Mr. Ball notice on July 5, 2017 that failure to serve these defendants could result in dismissal of this action against the unserved defendants. (Doc. # 79). Mr. Ball has neither requested service for, nor perfected service upon, Defendants Nunn, Sheffield, Debra and Rogers since this court's Order of July 5, 2017. Accordingly, all claims in this action against unserved Defendants Nunn, Sheffield, Debra, and Rogers are due to be dismissed without prejudice under Rule 4(m). Thus, there are nine Defendants who remain in this case: the City of...
To continue reading
Request your trial