Opinion
Civil Action 2:09-CV-1109.
April 29, 2010
ORDER
This is a civil rights action instituted by plaintiff, a state inmate, without the assistance of counsel. The complaint names as a defendant one Adam Muse, identified as a medical student. The records of this Court indicate that service of process on this defendant was returned unexecuted. Summons Returned Unexecuted as to Adam Muse, Doc. No. 11. Plaintiff's subsequent motion for default judgment against this defendant, Doc. No. 15, was for that reason denied. Order, Doc. No. 17. This matter is now before the Court on plaintiff's renewed motion for default judgment against this defendant, Doc. No. 38.
In his motion, plaintiff apparently seeks reconsideration of this Court's denial of his earlier motion for default judgment:
Plaintiff hereby appeals to Honorable Judge Sargus, requesting Honorable Judge, Sargus, to rescind his sua sponte order denying plaintiff's motion for default judgment (Doc. No. 17). Because the order denying plaintiff's motion for default judgment is in error.
Doc. No. 38, p. 2. Plaintiff insists that the Marshal's return of service indicates that this defendant was actually served with process on February 2, 2010.
Plaintiff is simply mistaken in his reading of the docket. Defendant Adam Muse has never been served with process. Moreover, because more than 120 days has passed without effective service of process on this defendant, the Federal Rules of Civil Procedure require that the claims against this defendant be dismissed. F.R. Civ. P. 4(m). Accordingly, plaintiff's motion for default judgment, Doc. No. 38, is DENIED.
Plaintiff is ORDERED TO SHOW CAUSE, within fourteen (14) days, why the claims against defendant Adam Muse should not be dismissed for failure to timely effect service of process.