Opinion
CIVIL ACTION 18-509-JWD-RLB
02-19-2020
NELSON T. LOPEZ (#615051) v. JAMES LEBLANC, 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 February 19, 2020.
/s/ _________
RICHARD L. BOURGEOIS, 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 alleging that he has been subject to unconstitutional conditions of confinement.
On August 15, 2018 summons was issued for defendant Meredith and the United States Marshal was ordered to attempt service. The summons was returned unexecuted as defendant Meredith is unknown at DOC. (R. Doc. 10). On November 7, 2018, at the request of the plaintiff, the Magistrate Judge ordered that defendant Meredith be served by the United States Marshal. See R. Doc. 23. Plaintiff provided the address of Louisiana State Penitentiary for defendant Meredith. On February 8, 2019, the summons to defendant Meredith was returned as unexecuted, and no further action on the part of the plaintiff to effectuate service appears in the record. See R. Doc. 28.
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. The plaintiff has not taken any action in this matter since on or about October 23, 2018. It is appropriate, therefore, that the plaintiff's claims asserted against defendant Becky Meredith be dismissed, without prejudice, for failure of the plaintiff to effect timely service upon her.
RECOMMENDATION
It is recommended that the plaintiff's claims against defendant Becky Meredith be dismissed, without prejudice, for failure of the plaintiff to serve the defendants as required by Federal Rule of Civil Procedure 4(m).
Signed in Baton Rouge, Louisiana, on February 19, 2020.
/s/ _________
RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE