Opinion
05 Civ. 10459 (RCC) (RLE).
July 6, 2006
REPORT AND RECOMMENDATION
Pro se plaintiff, Keith Drew ("Drew"), filed suit on December 13, 2005, against the City of New York Department of Corrections; Commissioner Martin Horn; Warden John Doe; Deputy Warden McCovey; Captains Mitil, Thomas, and Griffith; Correction Officers Bede, Hille, and Cintron; and Grievance Coordinators Mimms and King, raising civil rights claims under 42 U.S.C. § 1983.
On February 6, 2006, the case was referred to the undersigned for general pretrial matters. Federal Rule of Civil Procedure ("FRCP") 4(m) mandates that a plaintiff serve defendants with the summons and complaint within 120 days after filing the complaint. The record indicates that none of the defendants have been served. More than 120 days have passed since the complaint was filed. On April 17, 2006, the Court ordered Drew to show cause by May 19, 2006, why the complaint should not be dismissed for failure to prosecute. The original order was returned undeliverable. On April 28, 2006, the Court sent a copy of the order to another address contained in the court's file, but which Drew had not formally filed as a change of address. The Court also contacted the U.S. Marshals Service three times to inquire whether the marshals had received the required forms from Drew with which to effectuate service. As of July 6, 2006, the Marshals had not received any forms from Drew.
Drew has not responded to the Court's order to show cause. Accordingly, I recommend that the above-entitled action be dismissed without prejudice for failure to comply with FRCP 4(m).
Pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have ten (10) days after being served with a copy of the recommended disposition to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies delivered to the chambers of the Honorable Richard Conway Casey, 500 Pearl Street, Room 1350, and to the chambers of the undersigned, Room 1970. Failure to file timely objections shall constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. See Thomas v. Arn, 474 U.S. 140, 150 (1985); Small v. Sec'y of Health and Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) ( per curiam ); 28 U.S.C. § 636(b)(1) (West Supp. 1995); Fed.R.Civ.P. 72, 6(a), 6(e).