Opinion
CIVIL ACTION 18-191-JWD-RLB
08-14-2020
COREY MARQUEE ADAMS (#357624) v. LOUISIANA DEPT. OF CORR., ET AL.
NOTICE
Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the United States District Court.
In accordance with 28 U.S.C. § 636(b)(1), you have fourteen (14) days after being served with the attached Report to file written objections to the proposed findings of fact, conclusions of law and recommendations therein. Failure to file written objections to the proposed findings, conclusions, and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions of the Magistrate Judge which have been accepted by the District Court.
ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
Signed in Baton Rouge, Louisiana, on August 14, 2020.
/s/ _________
RICHARD L. BOUR GEOI S, JR.
UNITED STATES MAGISTRATE JUDGE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
The pro se plaintiff, a person confined at the Louisiana State Penitentiary ("LSP") filed this proceeding pursuant to 42 U.S.C. § 1983 against several defendants complaining that his constitutional rights have been violated due to the use of excessive force and deliberate indifference to his serious medical needs.
On September 19, 2019, the Magistrate Judge granted the plaintiff's Motion to Amend (R. Doc. 118) and ordered that the defendant Juan Smith be served by the United States Marshal. See R. Doc. 128. A review of the record reveals that service on defendant Juan Smith was not accepted because he has not been employed by the Department of Corrections ("DOC") since 2017 and his whereabouts were unknown to the DOC. See R. Doc. 134.
Pursuant to the requirements of Rule 4(m) of the Federal Rules of Civil Procedure, failure to serve a defendant within 90 days of commencement of an action is cause for dismissal of that defendant from the proceeding. Although a pro se plaintiff may rely on service by the U.S. Marshal, he may not remain silent and do nothing to effectuate such service and should attempt to remedy any defects of which he has knowledge. Since the summons was returned unexecuted on October 30, 2019, the plaintiff has not taken any further action to effectuate service upon defendant Juan Smith. It is appropriate, therefore, that the plaintiff's claims asserted against defendant Juan Smith be dismissed, without prejudice, for failure of the plaintiff to effect timely service upon them.
RECOMMENDATION
It is recommended that the plaintiff's claims against defendant Juan Smith be dismissed, without prejudice, for failure of the plaintiff to serve the defendant as required by Federal Rule of Civil Procedure 4(m).
Signed in Baton Rouge, Louisiana, on August 14, 2020.
/s/ _________
RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE