Opinion
Civil Action 9:22cv49
11-15-2023
CHARLES E. FITTS, JR. v. BOBBY LUMPKIN
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Zack Hawthorn United States Magistrate Judge
Plaintiff Charles E. Fitts, Jr., proceeding pro se, filed the above-styled lawsuit. The case was referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636(b) for findings of fact, conclusions of law, and recommendations for the disposition of the case.
Discussion
Rule 4(m) of the Federal Rules of Civil Procedure states as follows:
If 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 service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
The court previously entered an order directing that plaintiff be provided with a summons and a copy of the complaint for the purpose of service. Plaintiff acknowledged receipt of the order and summons on September 19, 2022, more than 90 days ago. In addition, plaintiff was granted an extension of time to serve the defendant. The extension of time expired on November 9, 2023. However, there is no indication in the record that the defendant has been properly served with process. As a result, plaintiff's claims should be dismissed without prejudice.
Recommendation
This lawsuit should be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 4(m).
Objections
Within 14 days after receipt of the magistrate judge's report, any party may serve and file written objections to the findings of facts, conclusions of law and recommendations of the magistrate judge. 28 U.S.C. § 636 (b)(1)(C).
Failure to file with the clerk specific written objections to the proposed findings of facts, conclusions of law and recommendations contained within this report within 14 days after service shall bar an aggrieved party from de novo review by the district court of the proposed findings, conclusions and recommendations and from appellate review of factual findings and legal conclusions accepted by the district court except on grounds of plain error. Douglass v. United Services Automobile Association, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc).
SIGNED this 15th day of November, 2023.